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The indications on the ground are that the Covid-19 virus is still here for a while, with health experts and analysts predicting yet another wave of new infections towards the end of this year. Except for some sections of the population who have reservations about taking the vaccine, the response has generally been positive. Further with other health protocols being encouraged especially in public spaces, it remains our shared responsibility to ensure that we observe these to the best of our ability.

The vaccination drive has moved to include sections of society who are generally regarded as being on lesser risk, showing how far the government’s effort to achieve herd immunity has gone.

Vaccination in South Africa is on voluntary basis thereby leaving the choice to individuals about whether to take the vaccine or not. However, confronted by the imminent reality that the country will most likely experience successive waves of new infections for the foreseeable future, questions arise as to whether such a voluntary approach to the Covid-19 vaccine is not doing a disservice to a society eager and desperate to reduce the effects of the virus.

The above seems to be the thinking in the business community, as under the auspices of NEDLAC in March 2021, employers and the Labour Department reached an agreement on the structural form in which employers may introduce standing vaccination policies in the workplace. Indeed this development sent shivers amongst a sizeable section of labour in particular and society in general, viewing it as a clear sign that we might be seeing the introduction of mandatory vaccination in South Africa in the near future.

However, studying the regulations published after the NEDLAC agreement, they take an accommodative approach and even discourage dismissal of employees who withhold consent to taking the vaccine. Medical treatment (which includes vaccination) is not provided for in our labour law, as opposed to medical testing as provided under Section 7 of the Employment Equity Act, 55 of 1998. Nonetheless, there are industries that cannot operate remotely and therefore having such a policy in place will be the only feasible way to keep operations open and viable. Nothing then prevents such an employer, after exhausting all measures to accommodate an employee refusing to take the vaccine, from dismissing the employee on incapacity grounds. Legal advice must be sought though, before taking this action.

With regards to immigration, South Africa’s open ports of entry require proof of vaccination or a negative Covid-19 test before admitting any traveller entry into the Republic. This is quite telling to the question at issue, as under no circumstances will a traveller be allowed into the country without the above being complied with first.

The premise upon which the withholding of consent to taking the vaccine, is mainly constitutional. Any person may refuse to take the vaccine based on the right to bodily and psychological integrity in section 12(2) of the Constitution, meaning a person makes their own decision with regards to medical treatment. Further, section 15(1) provides for the right to freedom of conscience, religion, thought, belief and opinion.

The same Constitution however provides that no right is absolute and may be limited under Section 36. Limiting a right must be done in a way that is justifiable and reasonable in an open, democratic society based on dignity, equality and freedom looking at:

  1. The nature of the right;
  2. Importance of the purpose of the limitation;
  • The nature and extent of the limitation;
  1. Relation between limitation and purpose;
  2. Less restrictive means to achieve the purpose.

Therefore it means the constitutional grounds of refusing to take the vaccine will be tested against the above limitation provisions, in the event that the only approach to achieve defeating the pandemic is an involuntary one.

Precedent has it that the Courts in Minister of Safety and Security And Another v Gaqa (2002) ZAWCHC 9 and Minister of Health Western Cape v Goliath And Others 2009 (2) SA 248 (C), the right in section 12 (2) was limited, although there is no precedent as yet on vaccination.

In some European countries regulations have been put in place to restrict the access into public spaces for people who have not taken the vaccine. It has long been realised that confronting the virus needs the hands of all people on deck and so having other people vaccinating whilst others choose not to, but still gain access to all spaces of human interaction, might work against purposes and efforts to defeat the virus.

The odds are there that South Africa may soon move towards involuntary vaccination, but that this will only come at the behest of trusted health professionals and weighed by the call of state if it withstands test as a viable policy in a democratic state.

We assist business and labour to comprehensively advise on the legality of measures in response to the Covid-19 pandemic. Our website outlines a wide array of other matters in which we conduct specialist services. Contact us for a consultation and assistance.


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