MY FRIEND THE WITCHDOCTOR
Role of Traditional Healers in South African Society
Christa Rautenbach1
My friend the witch doctor
I told the witch doctor I was in love with you
I told the witch doctor you didn’t love me too
And then the witch doctor, he told me what to do
He said that … Ooo eee, ooo ah ah ting tang …
[Lyrics by David Seville - 1958]
1. Introduction
It is estimated that South Africa has 200 000 traditional healers who are consulted by almost 70-80% of South Africans.2 Currently they operate unofficially and without licenses as traditional healers,3 some under the auspices of the Traditional Healers Organisation4 and other unofficial organisations.5 Over the years traditional healers and traditional healing have been unjustly and in some instances rightly criticised by the popular media of South Africa and elsewhere.6 The media often carries horror stories of traditional healing gone wrong, while the victims of their malpractices have to live with the consequences.7 On the other hand, there are also positive reports8 and it is clear that traditional healers have played and continue to play a vital role in creating a just society based on human dignity, equality and freedom.9
Although traditional and western health systems have operated side-by-side since early times,10 western healing has enjoyed greater official acceptance by successive governments because it was seen to be based on “scientific and rational knowledge, whilst traditional healing was seen to be based on “mystical religious beliefs”.11 As a result, by far the greater part of state and private funding has been poured into western healing at the expense of its traditional counterpart. This leads to a segregated health system where those who can afford it enjoy amongst the best medical services one can find while those who cannot afford it, particularly those people in rural areas,12 are serviced by health institutions characterised by poor facilities and insufficient resources. Currently western healing is unattainable for the majority of the South African population.13
The inaccessibility of western healing, the high cost attributed to it and the more holistic approach14 followed by traditional healers are some of the reasons attributed to the popularity of traditional healing.15 The government has realised this and has put forward legislation aspiring to integrate traditional healing into existing western healing practises.16 In this paper the lexical confusion regarding the terminology surrounding traditional healing will firstly receive attention.17 Secondly, the paper will focus on the current and future role of traditional healers in the health sector.18 Thirdly, the most important provisions of the Traditional Health Practitioners Act19 will be discussed critically and finally an outline of an interview with a local traditional healer will be given before a conclusion is reached.20
2. What’s in a name?
There is an overwhelming lexical confusion concerning the correct terminology for a traditional healer.21 Some of the confusion is created by the accounts of academic writers and others by the difference between the various culture groups in South Africa. In Zulu culture, for example, there are different classes of traditional healers, which are sometimes collectively labelled as “witchdoctors”,22 a term traditional healers earned because of their function to counter curses put on people by witches.23
The classes of traditional healers that can be distinguished in the Zulu culture include the nyanga,24 sangoma,25 sanusi26 and thwasa.27 Another distinction28 is between a sangoma (diviner-mediums)29 and inyanga (herbalists).30 Other writers use the terms “diviners” and “traditional healers” interchangeably without distinguishing between the two terms.31 So-called abathandazi or Christian diviners developed as a result of antiwitchcraft legislation. They found it easier to infuse traditional healing practices with Christian values and rituals, whilst enjoying the protection of the church.32 Research indicates that the difference between the various classes of traditional healers have been blurred as a result of colonial powers and structures which played a role in changing the setting of traditional healing.33 Legislation, such as the Witchcraft Suppression Act,34 distorted the difference between diviners and herbalists even more by prohibiting diviners to practice their trade.
Research also indicates that most traditional healers prefer the more generic term “traditional healer”, because the word “sangoma” also refers to someone who does harm to others.35 In some of the literature it is suggested that the categorisation of traditional healers is a mere academic exercise and that the profession itself does not distinguish in the same manner between the various categories of healers.36 The Traditional Health Practitioners Act37 distinguishes between the following persons who engage in traditional health practice,38 provided that they are registered39 as such under the Act:
(a) Traditional health practitioner.40
(b) Diviner.41
(c) Herbalist.42
(d) Student.43
(e) Traditional birth attendant.44
(f) Traditional tutor.45
(g) Traditional surgeon.46
Since only traditional healers engaged in traditional health practices may be registered as a traditional healer under one of the relevant categories, the terms “traditional health practice” warrants further explanation. In terms of the Act it means:47
… the performance of a function, activity, process or service based on a traditional philosophy that includes the utilisation of traditional medicine or traditional practice and which has as its object-48
(a) the maintenance or restoration of physical or mental health or function; or
(b) the diagnosis, treatment or prevention of a physical or mental illness; or
(c) the rehabilitation of a person to enable that person to resume normal functioning within the family or community; or
(d) the physical or mental preparation of an individual for puberty, adulthood,49 pregnancy, childbirth and death, but excludes the professional activities of a person practising any of the professions contemplated in the Pharmacy Act,50 … the Health Professions Act,51 … the Nursing Act,52 … the Allied Health Professions Act,53 … or the Dental Technicians Act54 … and any other activity not based on traditional philosophy.55
The Act affords quite a wide meaning to the concept of traditional philosophy. It includes:
… indigenous African techniques, principles, theories, ideologies, beliefs, opinions and customs and uses of traditional medicines communicated from ancestors to descendants or from generations to generations, with or without written documentation, whether supported by science or not, and which are generally used in traditional health practice.56 The broad meaning afforded to the concept of traditional philosophy might create difficulties when it needs to be proven, especially when the concepts are based on unwritten and unscientific customs and usages.
3. Role of traditional healers
Although the younger generation traditional healers engage in an increasing amount of political activities, it is commonly accepted that the older generation traditional healers are apolitical.57 Although most people from the traditional communities believe that a good traditional healer must have inherited his or her skills from one’s ancestors, research has shown that most traditional healers have high school and tertiary education qualifications. The same research has revealed that people from the traditional communities still consult traditional healers on a daily basis.58 Accounts of people with a western background consulting traditional healers are also on the increase.59
The common viewpoint is that traditional healers have played and still play a major role in witchcraft violence.60 In some instances they are instrumental in the “sniffing” out of “witches.”61 However, the Witchcraft Suppression Act62 discourages the naming or indicating of persons as witches and also criminalises the employment or solicitation of a witchdoctor to name or indicate any person as a witch.63 Although there is variance of opinion, it is generally accepted that a belief in witchcraft is indeed a factor to be taken into account in assessing an appropriate sentence in criminal law, if genuinely held by an accused and directly associated with the crime which he has committed.64
In one case65 the court held that the fact that the offender believed he killed “a bad and dangerous” traditional healer, is an extenuating circumstance, even if the traditional healer did nothing to the offender or his family. In S v Malaza66 the accused consulted a traditional healer about his unemployment and inability to find a wife. Acting on the advice of the traditional healer to drink the blood of a strong person and to bury certain of his organs, he killed his victim and was consequently brought to trial for murder. He was convicted by the trial court67 and, since no extenuating circumstances could be found, sentenced to death.68 On appeal the Appellate Division confirmed the judgement of the trial court and held that the accused’s belief in witchcraft in this situation did not amount to extenuating circumstances.
In Phama v S69 a cousin of the accused sustained fatal injuries in a motor collision. The family of the accused consulted a traditional healer who informed them that the victims were responsible for their cousin’s death. In a response to this announcement, the accused went to the victims’ home and executed them. The court considered the belief that witchcraft was the motive for killing, but found that it was not an extenuating circumstance in this case, because the accused was “not a tribesman from some remote district completely cut off from the influences of modern civilisation”.70 The court emphasised the need to show the accused and potential offenders that the price they must pay for resorting to murder in order to eliminate an alleged witch or wizard was not worth it.71
The role of traditional healers extends far beyond the criminal law. From time to time an employer tries to submit a medical certificate issued by a traditional healer to justify his absence from work.72
The Basic Conditions of Employment Act73 requires that a medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose or treat patients and who is registered with a professional council established in terms of an act.
Although some traditional healers belong to a voluntary unofficial association, such as the Traditional Healers Organisation, they do not qualify as medical practitioners or any other persons who are certified to diagnose and, therefore, they will not be in a position to issue a valid certificate.74 Aphane75 points out that this situation could have serious repercussions for an employee. It would mean that the employee was absent without leave and this could result in the dismissal or non-payment of the employee. This was indeed the situation in Numsa obo M Seemane and Kromberg and Schubert76 where the Commissioner held that a medical certificate issued by a traditional healer did not conform to the requirements as set out in the Act and as a result, the employee was absent without leave.77 The envisaged registration of traditional healers should alleviate the problems employees currently experience when their medical certificates obtained from traditional healers are not acceptable to their employees.78
The occurrence of traditional healers can also manifest itself in conflict situations in the workplace. One such example can be found in Chevron Engineering (Pty) Ltd v Nkambule79 where the appellant dismissed his entire workforce after they embarked on an illegal strike. Although the case dealt with the unfair dismissal of the appellant’s employees and not with the role or status of traditional healers, the facts of the case reveal that the reason for the strike was the appellant’s failure to allow his employees to bring a traditional healer to the appellant’s premises to cleanse some of the “muti” which was causing illnesses among the employees.80 After the differences between the appellant and his employers were resolved by the former allowing a Christian traditional healer to perform his rituals on the premise, the appellant re-instated only some of the dismissed employees.
The rest of the employees contested the fairness of their dismissal in the Labour Court who held that the dismissal was indeed unfair labour practice. The appellant then commenced with litigation which lasted almost nine years81 before it reached its end in the Supreme Court of Appeal who ordered the appellant to reinstate the dismissed employees retrospective for a period of six months as from 2 December 2003.82
Traditional healers have a huge role to play in the HIV/AIDS epidemic in South Africa.83 The negative publicity generated by the notorious conduct of some traditional healers added to the negative sentiment held toward the role that ethical and learned traditional healers can play with regard to South Africa’s fight against HIV/AIDS.84 Some traditional healers claim to have found the cure for HIV/AIDS85 and some have been accused of unethical and unsavoury behaviour towards HIV/AIDS patients.86 However, research has shown that traditional healers can play a major role in the prevention or control of HIV/AIDS.87 They should be included in HIV/AIDS prevention programmes, they could serve as sources of condoms and they could be involved in HIV/AIDS counselling programmes. Traditional healers have the trust of the communities they serve and have considerable influence amongst their patients. Sometimes they are the only alternative to western medicine in remote rural areas where the formal health sector is either poorly developed or non existent. These attributes of traditional healers should be used to prevent and control HIV/AIDS.88
Although the new Act89 prohibits traditional healers to make a diagnosis regarding HIV/AIDS or to treat it, they still have an important role to play in the prevention or control of HIV/AIDS. It would, therefore, be imperative to educate traditional healers regarding important aspects HIV/AIDS and to encourage them to participate in government structures involved in the HIV/AIDS programmes.
Tuberculosis has reached, besides HIV/AIDS, pandemic proportions in South Africa. In many instances issues related to tuberculosis can not be separated from issues relating to HIV/AIDS. Often tuberculosis patients are also infected with HIV/AIDS.90 One of the problems in the treatment of tuberculosis concerns the patient’s unwillingness or carelessness to complete their treatment.
As a result community based DOTs (directly observed treatment) were introduced in some areas with a certain rate of success.91 Since traditional healers are widely spread over remote rural area, a study was implemented to assess the possibility of including traditional healers as supervisors. The study showed that patients were highly satisfied with most of the supervision provided by the traditional healers who participated in the study and as a result the authors recommend that the expertise, including aspects such as easy accessibility and shorter waiting times, of traditional healers be used to control tuberculosis.92 Others share the viewpoint that there is real scope for including open-minded and keen traditional healers in the control and treatment of tuberculosis.93
Traditional healers, especially herbalists, have a very important role to play as conservationists.94 A research project has been initiated to investigate the extent of the traditional medicinal trade in areas bordering the Kruger National Park, as well as assessing the availability of medicinal species, in order to determine conservation priorities.95 The project included the assistance of traditional healers in order to make them aware of the importance and problems regarding conservation. Although problems were experienced as a result of cultural and socio-political issues, the general feeling was that there was a mutual understanding of the problems being experienced by conservationists and traditional healers and that both groups could work together in obtaining a common goal of protecting and conserving the environment.96
The role of traditional leaders is not limited to the situations already discussed above. Traditional leaders claim to be part of the medical profession and they demand the recognition and respect of the health care sector as a whole. They share the responsibility to operate in an ethical manner. They can be utilised to deal with mental health care problems97 and they can fulfil a core role in paediatric care.98 The list of co-operation between traditional healers and western doctors is endless. The time has come to bridge the gap between the two professions in order to fulfil the social, ethical and professional responsibility the health care sector has towards the community it serves.
4. Licence to heal
In recognising that the first point of medical contact for almost 80% of the South African population is traditional healers,99 the government has undertaken to establish a Traditional Health Practitioners Council to formulate work ethics for such healers. Earlier this year the President gave his blessing to the Traditional Health Practitioners Act.100 The purpose of the Act is to establish an interim Traditional Health Practitioners Council of South Africa;101 to provide for the registration, training and practices of traditional healers; and to serve and protect the interest of members of the public who use the services of these healers.102 The Act will create a framework for cooperation between mainstream health practice and traditional healing, which could, it is hoped, lead to integration and co-operation between traditional and western healing.103
Registration of a person is required in order for that person to be classified as a traditional healer.104 The registrar must register a healer only if he is satisfied that the applicant is suitably qualified to be a traditional healer.105 The Minister of Education106 is the responsible person to determine the suitable qualifications for registration.107 However, to date the Minister has not published what the suitable qualification would be. One can only hope that it will be suitably skilled healers only which will be registered.
Any person, who is dissatisfied with the treatment of a registered traditional healer or a student, may lay a complaint with the Council.108 The Council has comprehensive competencies regarding the investigation of complaints and if a traditional healer is found guilty of improper or disgraceful conduct, his or her penalties may include a caution or reprimand; suspension for a specific period; removal of his or her name from the registry; fine; compulsory community service; payment of costs or restitution to the complainant.109 It is important that the communities be informed of their rights to complain about improper and disgraceful conduct of traditional healers. It will be of no use if there are the necessary structures to lodge a complaint, but nobody knows how or where it could be done. There should also be sufficient protection for a complainant against the vengeance of the healer that he reported.
The disciplinary procedure described in the previous paragraph can only be instituted against a registered practitioner. An unregistered practitioner or student is criminally liable if he or she practices as a traditional health practitioner for gain, including110 rendering services normally associated with traditional or any other kind of healing.111 The inclusion or integration of traditional healing into the official health sector of South Africa is seen as a relatively inexpensive method of expanding health services.112 The provisions of the Act should ensure that registered traditional healers do not charge exorbitantly high fees for their services. A registered practitioner must, before rendering any traditional health service to a person, inform such a person of the fee he or she intends to charge for such a service.113 The Act prescribes that a practitioner must supply his patient with a detailed account within a reasonable period of time114 and which must comply with the provisions of the Medical Schemes Act.115
The Council may determine and publish fees from time to time116 and the patient may approach the Council for advice if he or she is not satisfied with the fees charged.117 In terms of the new legislation, a practitioner’s account may be charged against one’s medical aid. It is, however, uncertain at this stage whether existing medical aids will be able to cope with these new demands.
Another drawback is the implementation and monitoring of licences, and the testing and certifying of traditional remedies, which could prove to be expensive and time consuming in an already tight health budget.118
Although the Act has been subject to criticism,119 the general feeling is that it would ensure some standards of safety and certainty which will benefit the medical profession in general and the patients of traditional healers in particular.120
5. My friend the witchdoctor121
May Mongdi Seithati has been a traditional healer for the last eighteen years. He practices in the small town of Rammolutsi at Viljoenskroon,122 approximately 40 kilometres from Potchefstroom. He claims that he is both a herbalist and a diviner and that it is also his function to identify witchcraft and then report it to the local police. On an average, he sees six patients per day. Depending on the financial means of his patients, he either charges cash or receives goods in kind as payment for his services. Sometimes a patient is bedridden or unable to come to his house and he then makes a house-call.
He received his calling to become a traditional healer from his ancestral spirits. Their calls manifested themselves in dreams, hearing them speak to him and even moments of insanity. He received his training in Lesotho where he used to live before he became a South African citizen.123
He makes traditional medicine from the environment and claims that he has even used his medicine to treat HIV/AIDS, with some success. However, he did not elaborate on his level of success. He has referred some of his patients to a medical doctor, but admits that it has not happened often.
He is a member of the Traditional Healers Association and had to pay a once-off membership fee of R160,00. After mentioning the Traditional Health Practitioners Act, he responded by saying that he has never heard about it. However, he will register as a traditional healer in terms of the Act if it is explained to him and if it does not prohibit him from practicing as a traditional healer. He was, nonetheless, adamant that he would continue his traditional healing practice even if the Act does not allow him to do so.
Although it could not be said that the views of one traditional healer reflect the views of the majority, it clearly illustrates that there is indeed a need to educate traditional healers with regard to the consequences and requirements of the Act. Ignoring the issues would not make them go away. It is important that government interacts with everyone involved in traditional healing and the modern health sector in order to ensure mutual understanding and co-operation.
6. Conclusion
One of the hurdles preventing a closer working relationship between traditional healers and western healers (or the modern health sector) is the level of distrust that still exists between some members of both professions.124 Traditional healing is a well known phenomena that most people fear and do not understand. Therefore, it is imperative that there should be discussions, education programmes and more indepth studies to bridge the gap between traditional and formal health practices.125 For example, in stead of condoning circumcision during the initiation of young boys, a western surgeon could assist or train traditional surgeons to do the operation under more hygienic circumstances.
Medical doctors are considered to be good with physical healing, such as surgery and provision of powerful drugs, but their communication skills are sometimes poor and they often treat the patient in isolation, without considering the social context of the patient. On the other hand, traditional healers follow a holistic approach, they are available in all areas, especially remote rural areas, and they treat the patient within his social context.126
The potential benefits of including, rather than excluding traditional healers, outweighs the possibility of malpractices and maltreatment of patients. Besides, the same occurs in the formal health sector. The Act should address these issues in future and should ensure a rise in the general standard of traditional healers, as well as the protection of the patients of a traditional healer.
This might be a naïve viewpoint. Some traditional healers may feed on the superstitious beliefs of their patients who may be scared to report maltreatment to the Council, but having half an egg instead of an empty shell, may be one step in the right direction to eradicate incompetent traditional healers in South Africa. The inclusion or integration of traditional healing into the official health sector of South Africa is seen as a relatively inexpensive method of expanding health services.127 The provisions of the Act should ensure that registered traditional healers do not charge exorbitantly high consultation fees and it would also give traditional healers the necessary leverage to demand payment for their services.
However, the Act may have a totally opposite effect than envisaged above. According to Xaba,128 the socio-economic conditions of African people and the lack of support from the official health sector were some of the reasons why traditional healing flourished. If the regulating of traditional healers would mean that the traditional communities’ access to traditional healers is being hampered, it might become mere paper law.129
1 Christa Rautenbach, Professor in Law, North-West University (Potchefstroom Campus), South Africa I am extremely aware of the complexities and sensitivity of the issues associated with some aspects of traditional healing in South Africa. Despite not being someone who is confronted on a daily basis with issues of African traditional healing and traditional healers, I have spent many hours reading material about it, as well as conducted an interview with a local healer, May Mongdi Seithati – see par 5 for an summary of the interview.
Bibliography,/Footnotes
1 B Iur LLB LLM LLD. Associate Professor of Law at the Potchefstroom University for Christian Higher Education, Potchefstroom, South Africa; advocate of the High Court of South Africa, Commissioner of the Small Claims Court of Potchefstroom and the executive editor of Potchefstroom Electronic Law Journal (found at http://www.puk.ac.za/law/per/per.htm).
2 Anon “Healers Licensed in South Africa” BBC News at http://news.bbc.co.uk/1/hi/world/africa/3640270.stm; Cartillier J “Licensed to Heal: South Africa Moves to Recognize Traditional Healers” Agence France-Presse (08-09-2004) found at http://www.aegis.com/news/afp/2004/AF040920.html; Anon “Traditional Healers Recognised by South African Lawmakers” Afrol News (29-08-2005) found at http://www.afrol.com/articles/13912.
3 One exception is the KwaZulu Act on the Code of Zulu Law 16 of 1985 which applies to the KwaZulu-Natal Province. Sections 83-90 of this Act make provision for the registration of traditional healers (medicine men or women, herbalists and midwives) and matters related thereto and it is a criminal offence if anyone practices as such without a valid license. It is also a criminal offence if any person fails to comply with the provisions dealing with traditional healers.
4 The Traditional Healers Organisation represents approximately 70 000 traditional healers in South Africa. See Cartillier (2004) http://www.aegis.com/news/afp/2004/AF040920.html.
5 Peltzer K “A Community Survey of Traditional Healers in South Africa (Northern Province)” 1998 South African Journal of Ethnology 191-197,192.
6 The negative publicity is mostly associated with so-called “muti” murders. “Muti” (meaning medicine) are killings to obtain body parts for supposedly potent traditional cures. Although official statistics are not available, estimates range between 15-300 murders per year. Anon “Grisly Killings Supply S. African Body Parts Demand” Shanghai Star (14-08-2003) [found at http://app1.chinadaily.com.cn/star/2003/0814/fe21-2.html]; Holland H African Magic: Traditional Ideas that Heal a Continent (2003 Viking England) 12; Minnaar A “Legislative and Legal Challenges to Combating Witch Purging and Muti Murder in South Africa” in Hund J (ed) Witchcraft violence and the law in South Africa (2003 Protea Book House Pretoria) 86- 91.
7 A mother alleged that she was forced by her husband, a traditional healer, to kill their own child for body parts. Although her husband was sentenced to life imprisonment, the mother was acquitted. Every day she was confronted with the realities of a society who do not want to accept her innocence. Anon “I was Forced to Kill my Baby” BBC News (02-04-2002) [found at http://news.bbc.co.uk/1/hi/uk/1899609.stm]. In another story a young girl alleges that she was licked by a giant snake during a cleansing ritual and now she is HIV positive and pregnant - Reporter Daily Sun (12-09-2005).
8 Nevin “Trading Places” Men’s Health Magazine (August 2005) 140-146.
9 Section 7 of the Constitution of the Republic of South Africa, 1996 reaffirms the state’s responsibility to respect, promote and fulfil the rights of all in South Africa. The ever increasing popular media reports illustrate the society’s interest in traditional healing.
10 Muller A and Steyn M “Culture and the Feasibility of a Partnership between Westernized Medical Practitioners and Traditional Healers” 1999 Society in Transition 142-156, 143.
11 Peltzer K “An Investigation into the Practices of Traditional and Faith Healers in an Urban Setting in South Africa” 2001:6 Health SA 3-11, 4. There are also reports of a “white” traditional healers– see Clark H “The Doctor of Port St Johns” Dispatch Online (30-03-1998) found at http://www.dispatch.co.za/1998/03/30/editoria/HERBMAN.HTM; Van Zyl, L “’Ons eie Sangoma’” June 1992 Publico 4-6.
12 Research has also been done to show that traditional healers also operate in an urban setting – see Peltzer (2001) 3-11; Morgan R and Reid G “’I’ve Got Two Men and One Woman’: Ancestors, Sexuality and Identity among Same-sex Identified Women Traditional Healers in South Africa” 2003:5 Culture, Health and Society 375-391, 381.
13 Hopa M, Simbayi LC and Du Toit CD “Perceptions on Integration of Traditional and Western Healing in the new South Africa” 1998:28(1) South African Journal of Psychology 8-14, 8. See also Xaba T “Marginalised Medical Practice. The Marginalisation and Transformation of Indigenous Medicines in South Africa”; http://www.ces.fe.uc.pt/emancipa/research/en/ft/triunfo.html (on 30-08-2005) who argues that the marginalisation of traditional healing had a socio-cultural impact on African medical practices.
14 Their role is that of physician, counselor, psychiatrist and priest – Hewson MG “Traditional Healers in South Africa” 1998 American College of Physicians 1029-1034, 1030. See also Zungu H “Traditional Healers in the Work Situation” July 1992 People Dynamics 23-25.
15 Hopa, Simbayi and Du Toit 1998:28(1) South African Journal of Psychology 8-13. The authors have identified the urgency to reduce the ignorance, prejudice and suspicion among western and traditional healers about their counterparts. According to them it is one of the greatest stumbling blocks that might stand between the successful integration of the two systems. They recommend joint workshops, seminars and conferences on national and international level in order to address the problem.
16 See par 4. See also the speech by the Minister of Health during the signing of a memorandum of understanding between the Indigenous Healers of Kwazulu-Natal and the Nelson R Mandela School of Medicine on 22 October 2003 found at http://www.doh.gov.za/docs/sp/2003/ sp1022.html.
17 See par 2.
18 See par 3.
19 35 of 2004.
20 See par 4.
21 Hund J “African Witchcraft and Western Law – Psychological and Cultural Issues” in Hund J (ed) Witchcraft violence and the law in South Africa (2003 Protea Book House Pretoria) 12- 17.
22 Holland (2003) 11 indicates that the term is mainly used by conservative whites and that it is, therefore, loathed by traditional healers.
23 The Witchcraft Suppression Act 3 of 1957 makes provision for the suppression of practices related to witchcraft. The Act has been subject to severe criticism. One of the main objections against the Act is the fact that it gave rise to unfounded accusations of witchery with dire results – Niehaus I “Witchcraft in the New South Africa: A Critical Overview of the Ralushai Commission Report” in Hund (2003) 97-98. In the early 1990’s witchcraft related crimes escalated quite dramatically in the Northern Province and as a result the Executive Council of the Northern Province appointed a Commission of Inquiry, which was later to be known as the Ralushai Commission. The Commission recommended that the Witchcraft Suppression Act be repealed and that new legislation for the control of traditional healers be adopted – Ralushai NV “Summary of the Ralushai Commission Report” in Hund (2003) 124-130 at 130. The various publications emanating from the South African Commission on Gender Equality’s 1998 National Conference on Witchcraft Violence in South Africa have been published in Hund J (ed) Witchcraft violence and the law in South Africa (2003 Protea Book House Pretoria). Reading through the material it is not always easy to distinguish between a traditional healer and a witch. Both deal with supernatural and mystical powers. However, a detailed discussion of the difference (or similarities) between a traditional healer and a witch falls beyond the scope of this paper. See Hund (2003) 14 et seq for more information on the relevant issues. See also Holland (2003) 9 et seq.
24 Herbalist or diviner. See Hund (2003) 13.
25 Spiritualist who has received “a call” from the ancestral spirits. See Hund (2003) 13.
26 Spiritualist and lore-master that is higher in ranking than the nyanga and sangoma. See Hund (2003) 13.
27 During the training period a sangoma is referred to as a thwasa. See Hund (2003) 13. In the Huisgenoot Magazine (02-08-2001) 108-111, Holland gives her account of the caves near Ficksburg in the Free State Province where the training of some of these “learners” is conducted. The rituals seem to be an infusion of traditional and Christian values and usages. The caves are referred to as a university and the faculties represent the various directions of traditional healing.
28 Xaba (2005) 4. See also Kohnert D “Witchcraft and Transnational Social Spaces: Witchcraft Violence, Reconciliation and Development in South Africa’s Transition Process” 2003 Journal of Modern African Studies 1-29, 8 note 10; Kriel JD “Witches, Healers, and Helminths: Sotho Beliefs regarding the Utilisation of the Latent Power of Phenomena” 2003 Anthropology Southern Africa 167-171, 168.
29 Those who provide a diagnosis usually through spiritual means. See Richter Traditional Medicines and Traditional Healers in South Africa (Discussion paper prepared for the Treatment Action Campaign and AIDS Law Project, 27 November 2003) 8.
30 The herbalist chooses and applies relevant remedies. See Richter (2003) 8.
31 Holland (2003) 3.
32 Xaba (2005) 5.
33 Richter (2003) 8.
34 3 of 1957. This Act consolidated earlier laws into unified legislation for the whole country. Section 3 reads: “Any person who- (a) imputes to any other person the causing, by supernatural means, of any disease in or injury or damage to any person or thing, or who names or indicates any other person as a wizard; (b) in circumstances indicating that he professes or pretends to use any supernatural power, witchcraft, sorcery, enchantment or conjuration, imputes the cause of death of, injury or grief to, disease in, damage to or disappearance of any person or thing to any other person; (c) employs or solicits any witchdoctor, witch-finder or any other person to name or indicate any person as a wizard; (d) professes a knowledge of witchcraft, or the use of charms, and advises any person how to bewitch, injure or damage any person or thing, or supplies any person with any pretended means of witchcraft; (e) on the advice of any witchdoctor, witch-finder or other person or on the ground of any pretended knowledge of witchcraft, uses or causes to be put into operation any means or process which, in accordance with such advice or his own belief, is calculated to injure or damage any person or thing; (f) for gain pretends to exercise or use any supernatural power, witchcraft, sorcery, enchantment or conjuration, or undertakes to tell fortunes, or pretends from his skill in or knowledge of any occult science to discover where and in what manner anything supposed to have been stolen or lost may be found, shall be guilty of an offence and liable on conviction. …” In the case of offences (a) and (b), and in consequence of which the person in respect of whom such offence was committed, has been killed, or where the accused has been proved to be by habit or repute a witchdoctor or witchfinder, the offender can be imprisonment for a period up to 20 years. In the case of any other offence referred to paragraphs (a) and (b), the offender can be imprisoned for a period up to ten years. If an offence was committed in terms of paragraphs (c), (d) or (e), the offender could receive a fine up to five hundred rand or imprisoned for a period up to five years (or to both). Finally, in the case of an offence referred to in paragraph (f), the offender could receive a fine up to two hundred rand or imprisonment up to two years.
35 Muller and Steyn (1999) 149.
36 Pienaar LC, De Beer FC and Vorster LP “Die Socio-ekonomiese Posisie van Vroulike Kragdokters by die Nkuna van Ritavi” 2000:23 Suid-Afrikaanse Tydskrif vir Entnologie 164- 171, 165.
37 35 of 2004 – section 1. See par 4 for a discussion of the most important provisions of the Act.
38 Own emphasis.
39 Registration is a requirement – see par 4.
40 This is an umbrella term for the various categories of traditional healers – section 1.
41 A sangoma.
42 An inyanga.
43 A person training to be a traditional health practitioner – section1.
44 A midwife.
45 Someone who trains a traditional healer.
46 Traditional healer who performs certain operations, such as circumcision.
47 Section 1.
48 Own emphasis.
49 Puberty and adulthood would include the so-called initiation schools which are regularly in the news for the circumcisions which are done on young boys.
50 53 of 1974.
51 56 of 1974.
52 50 of 1974.
53 63 of 1982.
54 19 of 1979.
55 Own emphasis.
56 Section 1.
57 Ralushai (2003) 125.
58 Ralushai (2003) 125.
59 Nevin (2005) 142-146.
60 Nthai SA “Witchcraft Violence and the Need for New Legislation” in Hund (2003) 132.
61 Ralushai (2003) 126-127. One of the criticisms against the Witchcraft Suppression Act is that it encourages the pointing of witches rather than punishes witchcraft itself.
62 Sections 3(a) and 3(c).
63 In S v Hluhela [2002] JOL 10136 (T) the accused was charged with the offence of calling someone a witch and crimen iniuria. He was found guilty and sentenced in the court a quo. On appeal to the High Court of Transvaal, the offender’s sentence was reduced to a fine of R2 000,00 or in default of payment, one year imprisonment.
64 Rex v Fundakubi 1948 3 SA 810 (A). In this case the Appellate Division had to pronounce its viewpoint on the question whether a belief in witchcraft constitute an extenuating circumstance in the case of murder. The court held that “[a] belief in witchcraft entertained by the murderer, and particularly the belief that the victim had caused the death of near relatives of the accused by witchcraft, will materially bear upon this question and should be considered.” See also S v Nxele 1973 3 SA 753 (A); S v Ngubane 1980 2 SA 741 (A). An opposite viewpoint was taken in R v Bungweni 1959 3 SA 142 (E) where the accused set a hut alight which he believed to belong to a witch, the mother of a child who burned to death as a result of his actions.
65 S v Dikgale 1965 1 SA 209 (A).
66 1990 1 SACR 357 (A).
67 The Orange Free State High Court.
68 The death penalty has since been abolished in South Africa, see S v Makwanyane 1995 6 BCLR 665 (CC).
69 [1997] 1 All SA 539 (E).
70 At 543.
71 At 543.
72 The question was left open in Dlongolo v Prima Industrial Holdings (Pty) Ltd (1993) 4 (11) SALLR 7 (IC) and Pulp Paper Wood & Allied Workers Union and Nampak Corrugated Containers (1998) 3 LLD 48 (CCMA). See also Aphane M “Why is my Sangoma’s Medical Certificate not Valid?” 2000:2 Codicillus 65-68.
73 75 of 1997 – section 23(2).
74 In a Report by the Department of Labour, published in Government Notice R845 in Government Gazette 22648 of 13 September 2001, it was recommended that traditional authorities be authorised to issue medical certificates for sick leave in the agricultural sector. The Minister of Labour later issued an amendment in terms of section 56(3)(b) of the Basic Conditions of Employment Act 75 of 1997 to include the medical certificate of a traditional healer and it seems as if a medical certificate will be a valid sick note within this sector from 1 October 2004. See Government Notice R1109 in Government Gazette 26626 of 1 October 2004. In the case of employees of the Independent Electoral Commission, the “sick note” of a traditional healer must be accompanied by an affidavit as proof of the employee having been for such treatment – see regulation 15(3) of Government Notice R902 in Government Gazette 7169 of 17 September 2001. The situation is different in the KwaZulu-Natal Province where a licensed traditional healer will be qualified to issue a sicknote – see note 3.
75 Aphane (2000) 67.
76 Arbitration Case no AM035/20 NT, DRC MIBCO, Pretoria, 18-04-2000.
77 Although this was the finding of the arbitration court, the employer was ordered to pay compensation to the employee on the basis that the dismissal was procedurally unfair.
78 See par 4.
79 2004 3 SA 495 (SCA).
80 Par [3] of the case.
81 The litigation included review proceedings in the High Court who found in favour of the appellant, then de novo proceedings in the Industrial Court who found in favour of the employees and, then the Labour Appeal Court who also found in favour of the employees and, finally, the Supreme Court of Appeal found in essence in favour of the appellant.
82 The Minister of Labour published a Code of Good Practice contained in Government Notice R1394 in Government Gazette 20626 of 23-11-2001. In terms of par 7.3.1(a) a review of all employment policies, practices, procedures and of the working environment should be undertaken, including working conditions that may not accommodate cultural and religious differences, such as the use of traditional healers.
83 The Health Products Association of South Africa released a press statement on 11 May 2005 supporting the fact that traditional healers have an important role to play in the treatment of HIV/AIDS – see http://www.hpasa.co.za/. The Northwest Province’s provincial policy on HIV/AIDS for public schools identifies traditional healers as one of the role players in developing an implementation plan on HIV/AIDS for schools – see Official Notice 13 of 1999 published in Provincial Gazette 5426 of 29-11-1999.
84 Richter (2003) 5.
85 Mchunu V and Leeman P “Inyanga Claims he has a Cure for AIDS” Mercury (01-01-2000).
86 Mulaudzi H “Traditional ‘AIDS Healer’ Silenced” City Press (31-01-2000).
87 Abdool Karim SS “Traditional Healers and AIDS Prevention” 1993:83 South African Medical Journal 423-425.
88 Abdool Karim (1993) 424. The Treatment Action Campaign, which was launched on 10 December 1998 with the objective to fight HIV/AIDS in South Africa, supports the inclusion of traditional healers in the battle against HIV/AIDS – see their statement at http://www.tac.org.za/newsletter/2004/ns23_11_2004.htm. See also Morris K “Treating HIV in South Africa” 2001 The Lancet 1190.
89 See par 4.
90 Colvin M, Gumede L, Grimwade K and Wilkinson D “Integrating Traditional Healers into a Tuberculosis Control Programme in Hlabisa, South Africa” March 2002 Aids Bulletin 19.
91 Colvin, Gumede, Grimwade and Wilkinson (2002) 19.
92 Colvin, Gumede, Grimwade and Wilkinson (2002) 20.
93 Jones JS “Bringing Traditional Healers into TB Control: Izindaba” 1998:88 South African Medical Journal 929.
94 The KwaZulu-Natal Nature Conservation Management Amendment Act 5 of 1999 allow traditional healers to gather protected indigenous plants, to hunt indigenous animals and to possess the same only if they have a valid permit – see section 64. The Act’s date of commencement must still be proclaimed.
95 Botha J and Erasmus G “Assisting Traditional Healers in the Medicinal Trade” 1998 Custos 50.
96 Botha and Erasmus (1998) 50.
97 Thabede DG “The Relevance of Traditional Healers in the Provision of Mental Health Services” 1991:2 Social Health Practice 11-14.
98 De Villiers FRP and Ledwaba MJP “Traditional Healers and Paediatric care” Sept 2003 South African Medical Journal 664-665.
99 Hopa M, Simbayi LC and Du Toit CD 1998:28 South African Journal of Psychology 8-14, 8.
100 35 of 2004. This Act was assented to on 7 February 2005. However, its date of commencement has yet to be proclaimed.
101 Chapter 2 of the Act. Hereafter referred to as the Council.
102 Section 2.
103 Hopa, Simbayi and Du Toit (1998) 8 express their hope that there would soon be an integration of the two approaches. See also Jones JS “Traditional healers here to stay” 1998 South African Medical Journal 1057.
104 In terms of section 1, a traditional health practitioner is someone who is registered in terms of the Act as a traditional health practitioner and in terms of section 21(1) nobody may practice as a traditional health practitioner without being registered. Section 44, furthermore, reiterates that an unregistered practitioner is not entitled to remuneration for any services that he or she rendered, neither is he or she entitled to practice as a traditional health practitioner. There is no consensus between traditional healers regarding the necessity of registration – see Muller and Steyn (1999) 152.
105 Section 21(5).
106 Hereinafter referred to as the Minister.
107 Section 22. See also section 47 which entitles the Minister to issue regulations in this regard.
108 The disciplinary inquiries and investigations are regulated in chapter 4 of the Act. It seems from the wording of the Act, as if a person cannot use this route if the traditional health practitioner or student was not registered in terms of the Act. The onus is, therefore, on a patient to determine whether the practitioner is registered or not.
109 Section 34(1). In terms of section 35 the Council may conditionally suspend or postpone a sentence for a certain period.
110 Section 49(1)(a).
111 Section 49(1)(b)-(g).
112 Muller and Steyn (1999) 145.
113 Section 42(1).
114 The Act does not prescribe what time amounts to a reasonable time.
115 131 of 1998. The purpose of this Act is to “consolidate the laws relating to registered medical schemes; to provide for the establishment of the Council for Medical Schemes as a juristic person; to provide for the appointment of the Registrar of Medical Schemes; to make provision for the registration and control of certain activities of medical schemes; to protect the interests of members of medical schemes; and to provide for measures for the coordination of medical schemes …”.
116 Section 42(5).
117 Section 42(3).
118 Howse J 2000:90 “Parliament at a Glance: A Quick Guide to Important Health Legislation for 2000” Health & finance 339-341, 341
119 The Doctors for Life International association raises its concerns regarding the licensing of traditional healers in South Africa. Found at http://www.doctorsforlifeinternational.com/issues /traditonal_heal.cfm.
120 This seems to be the viewpoint of the South African Medical Association as reported in the media – see Cartillier (2004) http://www.aegis.com/news/afp/2004/AF040920.html.
121 Interview conducted with May Mongdi Seithati on 15 September 2005 at the police cells of Potchefstroom South African Police Services. Since the traditional healer does not understand English or Afrikaans, Pogisho Monchusi, a colleague, acted as interpreter. South Sotho and English were the languages in which the interview was conducted. The traditional healer was in police custody for allegedly being in possession of a fire-arm and human body parts. However, to date the trial has not commenced.
122 The town is situated in the Vredefort Dome, a meteor cite which has recently been declared a world heritage site. It is mostly rural people that live in the area.
123 He named his trainers Ma-Radebe Ntina and Teboho Matshuma, both traditional healers from Lesotho.
124 Colvin, Gumede, Grimwade and Wilkinson (2002) 20; Jones (1998) 1057; Muller and Steyn (1999) 151. See also the results of the research conducted by Peu MD, Troskie R and Hattingh SP “The Attitude of Community Health Nurses towards Integration of Traditional Healers in Primary Health Care in North-West Province” August 2001 Curationis 49-55.
125 See also the recommendations of Muller and Steyn (1999) 155.
126 De Villiers and Ledwaba (2003) 664-665.
127 Muller and Steyn (1999) 145.
128 Xaba (2005) 21.
129 See par 5.
Copyright 2005. Greek Legal and Medical Conference