On 12 September 2021, president Cyril Ramaphosa announced that government will provide further information on an approach to vaccine passports, “which can be used as evidence of vaccination for various purposes and events”.
This followed an announcement by sport, arts and culture minister Nathi Mthethwa last week that South Africans will have to be vaccinated to be allowed back into sporting arenas and other entertainment venues.
There had also been an earlier statement by health minister Joe Phaahla, speaking to the National Council of Provinces, that the use of public amenities may be limited to those who have been vaccinated.
However, restricting access to public spaces or employment to those who have been vaccinated raises important and complex constitutional questions, says legal firm Webber Wentzel.
“Such a restriction may be imposed directly on individuals by the government through legislation, or legislation may be enacted to empower public venues to lawfully restrict entrance to those who can demonstrate that they have been fully vaccinated.
“While the method of restriction is still uncertain, it is clear that this restriction will infringe certain constitutional rights.”
Webber Wentzel said that these rights include:
- The right to equality, which includes the right not to be unfairly discriminated against;
- The right to bodily integrity, which includes the right to security in and control over one’s body;
- The right to privacy, which includes the right to have one’s personal medical information remain private and the right to decide whether to disclose such information;
- The right to freedom of thought, belief and opinion.
A legal test
While these rights are indeed important – no right is absolute, Webber Wentzel said.
“Under section 36 of the Constitution, rights may be limited in terms of a law of general application if it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom,” the firm said.
The test for determining whether a limitation is justified requires an overall assessment of the particular circumstances of a case and a balancing exercise of the implicated rights, the firm said.
“Our Constitution provides that limitations on constitutional rights will pass constitutional muster if, considering the nature and importance of the right and the extent to which it is limited, this is justified in relation to the purpose, importance and effect of the limiting provision, taking into account the availability of less restrictive means to achieve this purpose.”
In this instance, the rights of those who choose not to be vaccinated must be weighed against the government’s obligation to take steps to protect its citizens from the continuous spread of Covid-19, Webber Wentzel said.
Scientific evidence shows that, when more people in a community are vaccinated, it is difficult for the disease to spread.
Restricting access to public venues for the vaccinated could be argued to be a reasonable and justifiable limitation of constitutional rights as this limitation would be in the broader public interest, Webber Wentzel said.
“Public interest is a consideration that our courts use to balance competing interests and rights. What constitutes the public interest is decided on a case-by-case basis and the meaning attributed to the concept depends on the context in which it is applied. ”
Restrictions that are taken in the interests of public health and safety are patently in the public interest, the firm said.
“The intention of such restrictions would be to prevent the spread of Covid-19 and protect the health and safety of the public.
“In addition, the limitation on rights in this instance would be proportionate in the circumstances. The alternative – i.e., restricting access to public entertainment and leisure venues entirely to contain the spread of the virus – would be a far more restrictive measure.”
While the restriction of constitutional rights is a controversial topic that rightly raises concern, the seemingly never-ending spread of Covid-19 infections and the development of newer and possibly more hazardous variants of the virus necessarily require drastic interventions by governments to save lives, Webber Wentzel said.
“When the rights of non-vaccinated individuals to access public entertainment venues are weighed against the public health considerations at stake, these rights must, in our view, give way.
“The seriousness of the pandemic far outweighs the interests of unvaccinated persons in accessing public entertainment venues and amenities. Those who choose not to be vaccinated should be prepared to sacrifice their access to such amenities in the interests of saving lives, as long as the limitation on their rights is as minimal and proportionate as possible.”
Commentary by Dario Milo, Lavanya Pillay & Bernadette Lotter of Webber Wentzel.