Make Covid-19 vaccination compulsory in South Africa — Legal experts

Legal experts believe that government is “morally and constitutionally obliged” to legislate mandatory vaccinations, a report from City Press has stated.

The report is based on comments from an online discussion hosted by the Mandela Institute at the law faculty of Wits University.

Among the panellists was constitutional law expert and advocate Steven Budlender.

Budlender said that Covid-19 threatened fundamental rights, including the right to life and physical integrity, as well as the right to health, due to the unprecedented pressure it placed on health services.

“This is clearly a case where the government is obliged to create legislation or regulations that will make vaccinations compulsory to ensure that these fundamental rights are protected,” Budlender said.

Thus far, the government has not mandated vaccinations as a requirement for any public activities, nor business activities.

However, private companies such as Discovery have made vaccinations compulsory for staff and visitors to their buildings based on provisions in the Occupational Health and Safety Act.

But Budlender said these provisions were inadequate because employers were given too much discretion on the issue.

“There is no obligation on an employer to introduce compulsory vaccinations. This is completely contrary to the policies of many other countries,” he said.

In the US, for example, companies with more than 100 employees must be vaccinated or tested weekly.

Several other legal experts agreed with Budlender, stating that the current legislation created uncertainty for employers, exposing them to potential CCMA and labour court cases.

Steven Budlender

A legal requirement to get vaccinated would be a radical step, considering the government has encouraged vaccination but always emphasised that it remained a choice.

But public health lawyer professor Safura Abdool Karim has also argued there are two laws that government could rely on to make Covid-19 vaccination compulsory.

Firstly, Covid-19 is a notifiable condition that must be reported to the National Institute of Communicable Diseases because it poses a significant public health risk.

Therefore, a healthcare provider may administer a vaccine for it even if a person refuses to accept it if a court finds the action is justified.

Secondly, South Africa’s state of disaster allows for introducing regulations that can make vaccination mandatory. Once again, however, a court order will be required to give effect to such a regulation, but Karim argues this would be easy to acquire.

Few countries have imposed mandatory vaccination policies for the general public.

One exception is Austria, which is imposing a limited lockdown from Monday on only unvaccinated people following a rise in Covid-19 cases and deaths.

This prevents them from leaving their homes except for basic activities like working, grocery shopping, going for a walk or getting vaccinated.

Such a move would likely be met with extreme resistance in South Africa, however.

Roughly 2 million out of Austria’s population of 8.9 million have not been vaccinated, which means the lockdown affects a small portion of the overall citizenry.

In South Africa, only 16.2 million out of 39.8 million adults had received at least one dose of a Covid-vaccine as of 20 November 2021.

A lockdown for the unvaccinated would therefore submit the majority of the country to the restrictions.

Given the current resistance to mandatory vaccination from civil rights groups and workers’ unions, such a plan could be taken to court.

The University of Cape Town is facing legal action from Solidarity Youth over its decision to approve mandatory vaccination in principle for all staff and students from 1 January 2022.

Solidarity and its affiliate Sakeliga have repeatedly emphasised the rights to bodily integrity, and of freedom of religion, belief and opinion would be undermined with mandatory vaccination.

“This issue is not merely a debate on the desirability of vaccination or otherwise, but much rather about South Africans’ right to make their own decisions about what may enter their bodies,” said Solidarity Youth.

The Department of Public Service and Administration is currently considering mandatory vaccinations for government workers. This plan has also been slammed by the National Education, Health and Allied Workers’ Union.

Now read: Warning signs of Covid-19 fourth wave in South Africa

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