The announcement by the South African government to move the country to Lockdown Level 4 as from 28 June 2021 was a clear indication that unless the population takes personal and group responsibility to avoid the transmission of the virus, the country will continue to be ravaged by the effects of Covid-19.
Health experts and analysts agree that the country is now in full swing of a third wave, with the numbers showing that Gauteng has been hit the hardest.
This is consequential considering that Gauteng is the smallest province by area size, the densest with people from all walks of life flocking there in search of greener pastures and is the province with the most critical economic activity to augment the country’s GDP.
Amid the government’s efforts to contain the virus whilst ensuring the economy is kept on its feet, there has been talk on whether the strict enforcement of such efforts may encroach on constitutional rights unjustifiably in a democratic society.
Central to this discussion has been around the issue of whether mandatory vaccination will be introduced as the most effective way to achieve herd immunity. At the moment the vaccination drive is on voluntary basis, supposedly because the government’s view is that the population has seen how deadly the pandemic is and therefore trust is abound that vaccination will be accepted and taken without issues.
Despite the above, it is a fact that a substantial section of the society has quietly raised objection to taking the vaccine even before it has reached their doorstep. Various reasons have been given for this ranging from religious, health to medical grounds.
With the opening of cyberspace in the past several years and internet penetration growing at alarming levels, internet has been awash with an overwhelming amount of material and perspectives that allegedly border on conspiracy theories (accurate or not) against taking the vaccine. This has effectively done a disservice to the vaccination programmes driven by the government.
Mandatory vaccination remains a possibility in South Africa. This is premised mainly on two basis, firstly that the government seeks to protect citizens as far as possible in as much as it is their responsibility to put measures in that regard, and secondly with economic activity being affected by persistent lockdown restrictions there is a strong appetite in business to make sure that their employees are vaccinated so that a safe working environment for all is achieved. Employers derive this mainly from the Occupational Health and Safety Act 95 of 1993.
But what then becomes of constitutional rights amidst this possibility?
In the event that employers enforce mandatory vaccination in the workplace, the only defences that can be raised by objecting employees include constitutional grounds, being the right to freedom of religion, opinion, dignity, belief, bodily and psychological integrity.
Despite the above, the same Constitution provides that rights can be limited and therefore are not absolute (section 36). In doing so, the Constitution requires that such limitation be done in a way that is reasonable and justifiable in an open and democratic society based on freedom, human dignity and equality, having regard to;
Consequently in the event that the authorities decide on mandatory vaccination, the above are the guiding principles to legalise such limitation on constitutional rights. However, it must be noted that to pass the legal test such limitation must be of indispensable status and be the option of last resort, with all measures taken to achieve the purpose with the least restrictions on Constitutional rights as possible.
In the case of S v Manamela And Another (2000) ZACC 5, the Court held that the considerations above are not exhaustive but are a guiding and starting point, the Courts must take all necessary and relevant considerations in their quest to determine whether any limitation of Constitutional rights is justified or not.
A two stage approach was set out in the case of S v Zuma (1995) ZACC 1 whereby the reasonableness and justifiability of a limitation is queried. If it is found that a right has been infringed or limited, it must be inquired whether such infringement is justified under the circumstances.
Reasonableness weighs the competing interests between exercise of the right and purposes of limiting the right in the least way possible, as was held in the case of S v Makwanyane (1995) ZACC 3 where the Court held that a right must not be infringed wholesale especially if there is a way to limit the effects of such limitation.
On the issue of medical procedures, such cases as Minister of Safety and Security And Another v Gaqa (2002) ZAWCHC 9 as well as the case of Minister of Health Western Cape v Goliath And Others 2009 (2) SA 248 (C) made judicial pronouncements that limited the right as enshrined in section 12 of the constitution. It remains to be seen if the Courts will take the same approach should any matter come before them with regards to mandatory vaccinations.
Van Deventer & Van Deventer Incorporated – Civil Litigation Attorneys South Africa
Our civil litigation attorneys are ready to provide you with expert legal advice regarding mandatory COVID-19 vaccines in South Africa.
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