To jab or not to jab?

Is mandatory vaccination constitutional?

Are you vaccinated against COVID-19? While we all long for the national state of disaster to finally be lifted and life to get back to normal, and vaccines are the only viable way for that to happen without a long wait for the virus to exhaust itself, many people still have mixed feelings about vaccination. For some, this is due to the speed at which the vaccines were developed; they don’t trust the scientific community not to have taken shortcuts. Others are simply wary of Western-led medicine and a system that has historically exploited Africans as medical guinea pigs. Whatever the reasons, everyone is entitled to their views. However, it is also true that no one is safe until everyone is safe. For this reason, some countries are now considering mandatory vaccination for employees in certain industries. In the UK, care home workers must be vaccinated (though not, curiously, hospital staff). The reason for this is apparent: care homes accounted for a very high proportion of deaths from COVID-19 in the first wave, as residents are old and frail. Although these residents have now all been vaccinated themselves, no vaccine offers 100% protection, and so ensuring that the people who care for them do not pose an additional risk is understandable. But the move is not universally popular, and mandatory vaccines are set to be a contentious issue for some time yet.

Vaccine passports are also in place in some countries, and are being discussed in others. So far, their use is limited to social activities such as sporting events and nightclubs – venues we choose to attend but do not have to attend. Mandatory vaccines in the workplace are another matter; we all have to earn a living.

The situation in South Africa

What about closer to home? Many feel it is not a question of if vaccine mandates should be initiated within the workplace, but when. South Africa’s Constitution and legislation caters for this, in specific scenarios and with several aspects taken into consideration. Section 36 of the Constitution addresses the limitation of rights. In terms of 36 (1) the rights in the Bill of Rights may only be limited by general application that is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. A further requirement is that the restriction be proportional to the purpose of the limitation. The bigger the risk to public health, the larger the restriction may be on individual rights. It therefore follows that such restrictions must be based on scientific evidence. They should not be arbitrary, discriminatory or unreasonable. This has been the basis for our lockdown restrictions.

Specific environments

South Africa can legitimately introduce a mandatory vaccination policy for specific occupational environments and leisure activities. This came after the employment and labour minister gazetted a directive on COVID-19 vaccination in certain workplaces, in a new consolidated direction on occupational health and safety measures. It stipulates that employers are required to come up with reasonable resolutions so that all parties are accommodated should employees refuse COVID-19 vaccinations on medical and constitutional grounds. The principle espoused by the directive is that employers and employees should treat each other with mutual respect. Essential considerations are public health imperatives, employees’ constitutional rights and efficient business operations. 

The directive, in section 3(1)(a)(ii), stipulates that employers must undertake a risk assessment to determine whether or not they intend to “make vaccination mandatory”. This should be in accordance with sections 8 and 9 of the Occupational Health and Safety Act (OHSA) , and should take into account the operational requirements of the workplace. 

Risk of transmission

Employers are obliged to identify employees who need to be vaccinated by “virtue of the risk of transmission through their work or their risk for severe COVID-19 disease or death due to their age or comorbidities”. Medical grounds for an employee not agreeing to take a vaccine as stated in annexure 3 of the directive are “an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccines”. 

Constitutional rights

Section 3(4) affirms that the employer must take into account the Constitutional rights of employees to bodily integrity and the right to freedom of religion, belief and opinion. Another relevant right, not mentioned in section 3(4), is that everyone is entitled to an environment that is not harmful to their health or wellbeing (section 24(a) of the SA Constitution). This is possibly because the right to a safe environment is adequately covered in the OHSA. Notwithstanding the entitlements to rights, most rights in the Constitution may be limited, provided the limitation is of general application, and is “reasonable and justifiable” – which means that it is rational, proportional and least restrictive in terms of achieving its objective (section 36) .

Fair labour practices

Section 23 (1) of the Constitution also stipulates that “everyone has the right to fair labour practices”. A mandatory vaccine policy could be regarded as a fair labour practice, as it prevents harm to all. Every employee has a right to a safe working environment. Employees who are vaccinated may legitimately object to having unvaccinated co-workers in their working environment.

The National Health Act 61 of 2003 also applies and contains regulations with regards to medical conditions, as well as the Disaster Management Act 2002. According to Regulation 14(3) of the Disaster Management Act 57 of 2002 stipulates that “any person who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder or murder.”  

Limitation of rights

The measures described above would impose a limitation on the right to bodily and psychological integrity (which includes the right to security in and control over their body) guaranteed in Section 12(2) of the Constitution.

We must therefore ask whether the limitation imposed on Section 12(2) would be reasonable and justifiable in an open and democratic society in accordance with Section 36 of the Bill of Rights, and thus constitutionally valid. The Constitutional Court summarised its approach in S v Manamela, explaining that the court must in each case “engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential checklist”.  

To determine whether a government may impose vaccine mandates, the proportionality analysis, which is a standard legal test for adjudicating human rights disputes, needs to be applied to determine the legitimacy, adequacy, necessity and proportionality of any restriction on human rights. The test consists of four stages and, when applied, leads to the conclusion that the measure infringes human rights no more than absolutely necessary to accomplish the purpose (necessity). It also does not have a disproportionately adverse effect (proportionality stricto sensu).

Mandatory vaccination measures would fail on the adequacy, necessity and proportionality strictu sensu stages. Mandatory vaccinations would therefore, per se, be disproportionate and unlawful.

Informed consent

International human rights law affords the individual a right to make informed choices about vaccination and all medical interventions. The underlying principle is that those who undergo the risk of medical treatment should make the final decision about their own participation after they are informed of the purpose, risks, and benefits of the treatment.

We believe that governments should comply with international human rights law and not allow mandatory vaccination for COVID-19. It should remain voluntary. What is needed is a balance between individual rights and the public good. As South Africans, we value the rights accorded to us in the Constitution. We should in parallel take heed of their limitations, in particular in the context of furthering the public good as in the current contagion. 

For advice on your rights

SD Law is a Cape Town law firm, also in Johannesburg and Durban, that is passionate about the law and about upholding the Constitution and defending human rights. If you think your rights are being infringed, give Simon a call on 086 099 5146 or email simon@sdlaw.co.za for a confidential discussion about your case.

Further reading:

• COVID-19 vaccines and your rights and responsibilities
• BREAKING NEWS: Court finds lockdown regulations invalid and unconstitutional
• Vaccinating children

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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