Finally, after a long year with the ever-present threat of the COVID-19 virus, there is a glimpse of light at the end of a very dark tunnel, presenting itself as a vaccine.
The COVID-19 vaccine roll-out plan is well underway in South Africa, albeit with some fits and starts, but most healthcare workers have now received the Johnson & Johnson vaccine. The question that arises is whether receiving the vaccine can be legally mandated. At this stage, it is uncertain whether government can and will enact legislation or other governmental measures in order to compel COVID-19 vaccinations. But when and as the roll-out plan progresses, it is important to assess this question in light of constitutional rights and ethos enshrined in the Constitution of South Africa.
Without adequate legislation which mandates compulsory immunisation of the South African population against COVID-19, the country could be placed at serious risk of further transmission, and the number of deaths could spike again. Compulsory immunisation must be considered alongside employment legislation and regulations such as the Labour Relations Act 66 of 1995; the Occupational Health and Safety Act 95 of 1993; the Employment Equity Act 55 of 1998; and the Basic Conditions of Employment Act 75 of 1997 where employers may introduce mandatory vaccine policies in the workplace, which some employees may reject. In some circumstances, the rejection of mandatory vaccinations in the workplace can constitute constructive dismissal.
The right to freedom and security of a person is enshrined in section 12 of the Constitution. More specifically, section 12(2) provides that every person has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction; to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent. No person shall be denied the protection that section 12 offers. A plain reading of section 12(2) makes it evident that every person has the preponderant right to make decisions on health and medical interventions and treatment, which undoubtedly includes the acceptance or rejection of the vaccine. However, constitutional rights are never one dimensional and rights may be limited when there are justifiable grounds for doing so. Moreover, the National Health Act 61 of 2003 contains clear provisions for emergency treatment (section 5), consent (sections 7 and 9), and participation in decisions of a medical nature (section 8).
Section 36 of the Constitution provides for the limitation of constitutional rights in so far as it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and having regard to: (i) the nature of the right; (ii) the importance of the purpose of the limitation; (iii) the nature and extent of the limitation; (iv) the relation between the limitation and its purpose; and (v) less restrictive means to achieve the purpose. In S v Manamela and Another (Director-General of Justice Intervening)  ZACC 5 it was held that these five factors do not form an exhaustive list or automatic checklist. The courts are encouraged to conduct an overall assessment in order to arrive at a judgment based on proportionality. The right to bodily and psychological integrity can thus be limited by legislation which passes the stringent test of being both “reasonable” and “justifiable”. The two-stage approach is set out in the case of S v Zuma  ZACC 1. First, it needs to be determined whether there has been a contravention of a guaranteed right in the Constitution and secondly, whether the contravention is justified under section 36 (the limitation clause). The test of reasonableness involves the weighing up of competing rights and values based on proportionality. In S v Makwanyane and Another  ZACC 3 it was further held that a right should not be taken away altogether under the guise of limitation and should be limited as little as possible. Drawing on the above, it is evident that there is no absolute limitation of the right envisaged in section 12 and that the courts ought to consider broader societal and governmental interests when balancing competing rights.
The South African courts have not yet had the opportunity to decide on the issue of compulsory vaccinations, but it has made several other judicial pronouncements on section 12. In Minister of Safety and Security and Another v Gaqa  ZAWCHC 9, the court relied on the public interest and applied a balancing act of rights to conclude that the respondent was forced to undergo surgery, albeit that he never consented to surgery. Similarly, in the case of Minister of Health of the Province of the Western Cape v Goliath and Others 2009 (2) SA 248 (C), the court compelled the surviving respondents to receive treatment for tuberculosis against their will. These decisions show that in some instances the public interest outweighs the right to bodily and psychological integrity of individuals.
Although it may be true that by vaccinating enough people, herd immunity is created, there is no guarantee or certainty about the effectiveness of the vaccine, its long term effects on people, and whether social solidarity trumps individual or patient autonomy. It is still possible to contract COVID-19 after having received a vaccine.
South Africa is well known for its culture of Ubuntu which means that an individual should act in a manner which benefits the greater community. Mass vaccination promotes the principle of Ubuntu because it not only protects individuals but society at large, and vice versa. By refusing to be vaccinated, the long term effects of which are still unknown, individuals will be able to exercise their rights under the Constitution, which also contributes to the concept of Ubuntu. Is it reasonable to expect that those who do not wish to be vaccinated should sacrifice fundamental human rights in order to accommodate the wishes of another group of people in favour of vaccination? The simple answer is no. Based on our constitutional ethos, a person’s decision to receive a vaccine must always be voluntary and made without any undue influence. Our Constitution undoubtedly respects and protects such a decision.
COVID-19 is highly contagious and deadly, but there is not enough evidence to indicate that a compulsory vaccination approach is absolutely necessary at this stage. Although the disease has inflicted death and hardship on the population, so do diabetes, TB, HIV and AIDS, cancer, lung infections, and many other illnesses. Instead of compelling the uptake of the vaccine, less restrictive means should be used to reduce the transmission of the virus. Although the government has said vaccines will not become mandatory and that forcing someone to be vaccinated would be a clear violation of section 12 of the Constitution, the government can certainly change its stance if the safety of the population becomes more important than individual autonomy and rights. Workplaces and employers will still be in a position to adopt policies in line with employment legislation and the Constitution to make vaccines mandatory for employees if such policies do not infringe the right to bodily and psychological integrity.
Tanya Calitz is a lawyer at an international law firm in South Africa and human rights activist. She holds an LLM degree in Human Rights with merit from the University of Edinburgh and an LLB degree with distinction from the University of the Free State.