Academics, legal professionals and judges have weighed in over the course of the last few months to help us understand what the law is with regards to vaccine mandates. This article will draw on this commentary to help provide some insight as to where we stand in different contexts.
Mandates should be thought about as existing on a spectrum. The most extreme mandate would be where the State forcibly injects a person who has not consented.
An example of a less extreme mandate would be the situation where if one does not have a vaccine then the government would be able to limit some of their rights (e.g. accessing certain stores, travel, restaurants, etc)
Then on the other end of the spectrum, incentives could be made to benefit people who get vaccinated rather than taking a punitive approach. This type of policy was adopted by Game stores, whereby vaccinated people received a 10% discount.
Can the Government legally force a vaccination?
According to public health lawyer Safura Abdool Karim in her News24 piece, in 2020, Covid-19 became a notifiable condition under the Notifiable Medical Conditions Regulations. A notifiable condition is a disease that poses a substantial public health risk. Examples of notifiable diseases in South Africa are cholera, listeriosis and tuberculosis.
When a person is diagnosed with one of the above conditions, the doctor or nurse must report the diagnosis to the National Institute for Communicable Diseases.
Under the Notifiable Medical Conditions Regulations, a healthcare provider would be allowed to administer a vaccine even if a person refuses to accept it. According to Karim the process is as follows: The head of the provincial department of health would have to apply for a court order; the court in question would then need to decide whether compelling the person to take the vaccine is justified.
This option seems highly unlikely, however there are other ways to mandate vaccinations using the law.
On Wednesday, 22 September the UCT senate voted in favor of the proposed policy to make vaccinations mandatory for (non-exempted) staff and students. This proposed policy will take effect from 2022 pending the final decisions of the UCT Council.
People who are vaccine hesitant have argued against such a policy, stating that this would be in violation of the Bill of Rights.
However, Pierre De Vos, a Constitutional law professor at UCT argued that such an approach would likely pass constitutional muster.
Section 12(2)(b) of the Bill of Rights states that “everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body”. This section protects the right of “everyone” to make informed decisions concerning their own bodies.
Such a policy of requiring staff and students to get vaccinated will not be a direct mandate as described above. However, it would interfere with their right to make decisions freely about their own bodies. Thus, the policy would be a limitation on one’s constitutional rights.
What is important to realize is that rights may be limited, if the limitation is justified under S36 of the Constitution.
A section 36 analysis requires one to balance the competing interests relating to a limitation of a right. One must weigh up the interests of staff and students whose right to bodily integrity will be limited. One must also weigh up the interests of society (the university community). Three questions are asked when conducting such an analysis:
- How important is the purpose of the envisaged measure?
- How likely is it that the measure will achieve its purpose?
- Are other effective but less invasive measures available to achieve the same purpose?
After such an analysis the Court would need to decide whether the limitation of the right is so drastic that it cannot be justified. If the Court decides that the purpose of the limitation was reasonable and justifiable and the benefits to society outweigh the limitation of the right, then such a policy will pass constitutional muster.
Vaccines in the private sector
Private sector actors may mandate where they choose to. If they are denied that right then the effect will be to force private entities to accept non-vaccinated people in their restaurants, business, schools, etc. This would essentially be a reverse mandate of sorts. Owners have a right to exclude people from their property and they also have a right to freedom of association.
Vaccines in the workplace
Discovery Health announced that vaccination would be mandatory for all staff starting from 2022. A number of private entities have followed suit, such as Curro School and Sanlam.
Private companies introducing these policies have relied on section 8(1) of the Occupational Health and Safety Act 85 of 1993. This section states that employees have a duty to maintain a working environment that is safe and without risk to the health and safety of employees.
Employment and Labour Minister’s directive
The Department of Employment and Labour issued a directive that supports the introduction of workplace vaccine mandates for employees who are at high risk of disease or death due to age or comorbidities.
The directive provides employers with discretion to decide whether or not vaccination becomes mandatory for all employees. However, the directive recognises the importance of the employee’s constitutional rights of Freedom and Security of the person (s12) and Freedom of Religion, Belief and Opinion (s15). There is scope for employees to object on these grounds.
Employees may also raise medical grounds for refusing a vaccine. Medical grounds refer to issues such as any severe reaction to a previous vaccine dose, or diagnosed allergy to a component of the Covid 19 vaccine.
The law pertaining to vaccine mandates is fresh in South Africa. One should expect many policy decisions relating to vaccines in both the private and public sector. One should also expect court judgements to come out which will provide much needed guidance.