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The recent decision of the government to terminate the national state of disaster, in favour of managing the Covid-19 pandemic further under the National Health Act of 2003, brought more questions than answers in the ongoing debate concerning vaccine mandates. Of particular interest are the conflicting positions between the government’s policy on Covid-19 vaccination as well as the regulations in terms of the National Health Act. Could this be telling of a reality we are soon to face in South Africa in the near future? 

President Cyril Ramaphosa announced the termination of the national state of disaster (NSD) on 4 April 2022, which had been put in place in terms of the Disaster Management Act of 2002. The regulations that had largely been used to manage the pandemic since 2020 had indeed been effected under this piece of legislation. On 15 March 2022, the Department of Health published regulations in terms of the National Health Act of 2003 (NHA) inviting comments before they are promulgated. It was announced that the regulations will be used to manage the Covid-19 pandemic further as the NSD had been terminated.

It is some of these NHA regulations referred to above, that have cast some confusion as they seem to be at odds with the government’s position on Covid-19 vaccination. To level things up, the government’s position/policy on Covid-19 vaccination is that it remains voluntary, which position was reiterated by the Deputy President DD Mabuza earlier this month (April).

Regulations 15A (1) (a) (b) (c) (ii) and (iii) provide that a person who is suspected of having contracted, has been in contact with a confirmed case, or has been confirmed as a case themselves, of a notifiable medical condition (NMC) listed in Annexure A, Table 1, 2 or 3, may not refuse quarantine, mandatory prophylaxis, treatment or isolation. This provision has caused the most confusion as it provides for mandatory prophylaxis. Prophylaxis can be defined as ‘treatment given to prevent disease,’ which essentially refers to vaccination. The only prophylaxis available at the moment for Covid-19, is the vaccine. The provision above is consequently, at odds with the government’s policy on Covid-19 vaccination.

It must be clarified that the introduction of vaccine mandates was accepted, after extensive deliberations at NEDLAC, in the workplace, although employees still have an option to decline taking the vaccine. The employer however, after assessing the risk profile of the employee, may opt to terminate the employment of that particular employee on incapacity grounds. Nonetheless, the current policy at the moment for the wider population is that vaccination is voluntary.

The key question then becomes, are we marching towards mandatory vaccination for the whole population? Only time will tell.

The period for submitting comments on the draft regulations lapsed on 14 April 2022 and we sincerely hope the above conflict was brought to the attention of the Department of Health to clarify or amend.

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