MANDATORY VACCINATIONS AND THE CONSTITUTION

Numerous employers implemented a Mandatory Vaccination Policy (MVP) in line with the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ (Consolidated Direction), gazetted on 11 June 2021.

A very heated topic currently in the labour market, all the way up to the National Economic Development and Labour Council (Nedlac), where problem-solving and negotiations on economic, labour and development issues, including the mandatory vaccination issue, are at the forefront between Government, labour, business and community organisations. Currently Nedlac’s recommendation to Parliament is that mandatory vaccinations should be implemented in workplaces.

On the 7^th of December 2021, Business Tech ran an article, Business to approach Constitutional Court over vaccine mandates in South Africa, quoting the Minister of Labour, Thulas Nxesi (the Minister), saying that the group is expected to approach the Constitutional Court for a legal declarator on vaccine mandates in 2022. Business Unity South Africa (BUSA) however issued a statement on the 8^th of December 2021 to correct the above by stating that it is not their position to approach the Constitutional Court. Their intention being to consult their ‘legal advisors about the possibility of applying to the High Court for a declaratory order to provide additional legal certainty to back up the OHS guidelines already in place.

The writing seems to be on the wall!

The push back by employees seems to be in the minority, as some of the bigger Groups in the retail motor industry report between 70% to 90% of their staff being vaccinated. In the same breath, the majority of the bigger Groups in the retail motor industry are now implementing Mandatory Vaccination Policies (MVP), with specific timelines and opportunities to formally object to being vaccinated.

Duty of the Employer

The Occupational Health and Safety Act 85 of 1993 as amended (OHS) is very specific in section 8(1) that your employer has a duty to ‘provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.’ (Own Emphasis) This duty is not limited to you as employee only but is extended in terms of section 9, providing that ‘Every employer shall conduct his undertaking in such a manner as to ensure…persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.’

It is with this provision in mind, and in terms of the Disaster Management Act, that the Minister issued the Consolidated Direction published on the 11^th of June 2021. (You can find a copy here). Almost every paragraph of this Consolidated Direction places a duty on your employer with a fair warning that non-compliance may result in monetary penalties and/or imprisonment in terms of the OHS.

Right of the Employee

Even though it seems as if the minority of employees aren’t vaccinated, it does not by default mean that you do not have a right. Annexure C of the Consolidated Direction gives you the right to refuse to be vaccinated on medical grounds or constitutional grounds, as per section 12(2) and 13 of the Constitution of the Republic of South Africa 1996 (the Constitution). Refusal on medical grounds should not be too difficult as a medical practitioner, a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Services Act 1974 (Act No. 56 1974), can provide you with the necessary medical report(s).

Constitutional grounds are the tricky part.

The Constitution

The constitutional rights concerned include the right to bodily integrity (section 12(2)), privacy (section 14), to protection against unfair discrimination (section 9) and to freedom of thought, religion, conscience and opinion (section 15).

The constitutional right set out in section 12(2), affords every person 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.’

You have, in terms of this right, the predominant right to decide on any medical intervention and treatment. I share the view of Tanya Calitz [Constitutional Rights in South Africa Protect Against Mandatory COVID-19 Vaccinations (April 2021)] that this right set out in section 12(2)(c) includes the acceptance or rejection of the vaccine.

• Limitation

The reality is that the rights afforded to you in terms of the Constitution, specifically Chapter 2 – The Bill of Rights, is not absolute. In October 2021, during the interview process to fill vacancies at the Constitutional Court, Alan Johnson SC said ‘If vaccine mandates are going to be debated, one then has to see the limitations to those rights justifiable with reference to section 36 of the Constitution’. Another clear indication that the question on mandatory vaccinations and the legality thereof, remains a challenge.

The Constitution provides, in section 36, that rights may be limited by laws of general application, the emphasis is placed on reasonableness and justifiability ‘in an open and democratic (strength of the people) society based on human dignity, equality and freedom, taking into account all relevant factors…’ These factors are the nature of the right; extend of the limitation; importance of the purpose of the limitation; relation between the purpose and the limitation; and less restrictive means to achieve the purpose. To succeed the Constitutional Court use the doctrine of proportionality, weighing the right you depend on, on the one side and the rights of others or important social concerns such as health, safety, public order and democratic values, on the other.

• Non-Derogable Right

The whole issue of mandatory vaccinations is so complex, but let’s take it one step further. In terms of ‘States of Emergency’ section 37, a number of constitutional rights are termed ‘non-derogable rights’, meaning that these rights cannot be limited or infringed. One of these rights listed is the right found in section 12(2)(c)  ‘Everyone has the right to bodily and psychological integrity, which includes the right- not to be subjected to medical or scientific experiments without their informed consent’. The implication, and in context with this provision, the understanding is that the limitation of the rights listed will not contribute towards reaching the objective, in this context, to stop the pandemic.

This is unfortunately not the end of it. The question that might come next is whether the COVID-19 vaccinations are in fact medical or scientific experiments? Bear in mind that this is the only extend to which section 12(2) is non-derogable. 

Conclusion

So, at this stage, no one has the answer. But at the end fairness and reasonableness must prevail and each dispute must be measured and dissected with fairness and reasonableness in mind. The general feeling currently, in the labour environment, is that this very dispute will end up in the Human Rights Court before it even reaches the Constitutional Court. Again, there is no clear answer at this stage on whether one can be forced/coerced into being vaccinated. It is also unclear whether the right to life in terms of those who are vaccinated, will outweigh the right set out in section 12(2)(c).  

We will keep you updated on any new developments, outcomes and decisions in this regard.

Tiekie Mocke

Manager: MISA Legal Department