Legal Articles

On 7 December 2021, the South African Minister of Labour, Thulas Nxesi announced at a meeting of the National Economic Development and Labour Council (NEDLAC) that the forum has plans to approach the Constitutional Court to request a declaratory order on mandatory workplace vaccinations as well as reserving the right to declare certain places inaccessible if one is not vaccinated. NEDLAC is a coalesce forum where business, labour and government influence policy.

Back in March 2021, the forum had agreed on the structural form around which mandatory vaccine policies may be introduced in the workplace. Quite recently, Standard Bank and MTN announced their own mandatory workplace vaccine policies for employees, but nonetheless contain provisions for those who want to apply for exemption. Where exemption is requested and declined, MTN Group President and CEO announced that they will have no obligation to continue with the employment contract of that employee.

On the other hand, the South African Federation of Trade Unions (SAFTU) announced that it opposes vaccine mandates, and that it will also approach the Constitutional Court for guidance and clarity. Rights groups such as Afriforum also opined that vaccine mandates will infringe constitutional rights.

Section 12 (2) of the Constitution of the Republic of South Africa, Act 108 of 1996

The constitutional argument is premised on the provisions of section 12 (2) of the Constitution of the Republic of South Africa, Act 108 of 1996, which provides that, 

(2) Everyone has the right to bodily and psychological integrity, which includes the right—

(a) to make decisions concerning reproduction;

(b) to security in and control over their body; and

(c) not to be subjected to medical or scientific experiments without their informed consent.

Further, there is no provision in our employment law to provide for mandatory treatment, which includes vaccinations. However, medical testing is provided for under Section 7 of the Employment Equity Act, 55 of 1998.  

Proponents of mandatory vaccination are pushing against the above argument based on the provisions of section 36 of the constitution, which provides that no right in the Bill of Rights is absolute, and may be limited under certain circumstances.

Limitation of rights

36.

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

They argue that the limitation of the rights as provided for in section 12 (2) is reasonable, justifiable and of general application, which is consistent with the provisions of Section 36 above. Further, there is precedent in our law whereby the rights in section 12 (2) were limited, in cases such as 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), although the decisions were not particularly about vaccination.

Internationally, some European countries have put regulations in place to restrict access to some public spaces in the event that one is not vaccinated. This may be a huge and luring consideration when the Constitutional Court sits to make a determination on the matter. Whereas the President of the Republic of South Africa had indicated earlier this year that no one will be forced to vaccinate, the reluctance in the population to vaccinate is substantial to the extent that it may favour the re-introduction of hard lockdowns as long as the virus keeps mutating and infecting more and more people.

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