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Constitutional Court May Have Final Say On Mandatory Vaccine

As the COVID-19 pandemic continues on its destructive path; governments, businesses, labour and the general population are in constant inquisition as to the best approach to contain the pandemic. Whilst the vaccination drive has been ongoing, it is the low uptake amongst other groups in the population that has triggered clamors for vaccine mandates.   

In South Africa, the arguments of those who oppose forced vaccination range from constitutional to medical reasons. So much suspicion is abound within the population as to the long-term effects of the vaccines which were developed through hastened processes as the world raced to contain the pandemic.

Mandatory Vaccines

Mandatory Vaccination Policies in the Workplace?

The National Economic Development and Labour Council (NEDLAC), which is a platform where business, labour and the government converge to inform and influence policy, announced recently that they will approach the Constitutional Court (Concourt) for a declaratory order for businesses to have mandatory vaccination policies in the workplace which may allow, employers to dismiss employees who would have chosen not to vaccinate without sound reasons.

What will be accepted as sound reasons for one to be exempted from mandatory vaccination is important in that discussion, as despite the limitation of rights in Section 36 of the Constitution of the Republic of South Africa Act 108 of 1996, the Concourt will likely not favor an approach that will be seen as one that tramples on constitutional rights.

At the same time and on the other hand, the pandemic is a global menace that threatens the economy, geo-politics, the environment and people in unimaginable ways. The appetite within the business community to have mandatory vaccination policies is not an illegitimate or ill-advised one, a responsibility lies with everyone to ensure that efforts are directed towards having effective control over the virus.

The South African Federation of Trade Unions (SAFTU), which is the second largest labour confederation in the country, recently announced that it will oppose involuntary vaccine mandates, as they work against constitutional freedoms. The labour confederation also plans to approach the Concourt to provide clarity on the issue.

MTN and Standard Bank further recently announced their respective mandatory vaccination policies, which one may be exempt on acceptable grounds. The thinking is that because businesses serve members of the public and corporates, with whom they interact with almost on a daily basis, therefore they would want to ensure that their customers have confidence in the environment in which both parties transact.

The legal argument in favor of mandatory vaccination is mainly premised on the limitation of rights in the Constitution, inciting that section 12 (2) which provides for one’s right over decisions with regards to their medical welfare, may also be limited. Further, employers have an obligation as per the Occupational Health and Safety Act of 1993 to provide a safe and healthy working environment. Thus, having an employee who withholds consent to vaccinate may pose risk of transmission to other employees, and if mass transmission happens it may cripple the operations of the business.

Van Deventer and Van Deventer Inc.

Our humble view is that, the proponents of mandatory vaccination ought to take into account the standing desire of our democracy not to fall to the lure of easily trampling on constitutional rights whenever an opportunity presents itself. The Covid-19 virus will be under full control one day, and the effects it had on our jurisprudence will live with our society for as long as it exists. It is possible to have vaccination policies in the workplace and still retain observance and respect for freedoms of choice. Not all workplaces are at high risk, let alone numerous measures can be adopted to effectively discharge duties with less risk of transmissions. A targeted approach from industry to industry should be preferred over a blanket approach to workplace vaccination.

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