Businesses head to court for clarity on mandatory Covid-19 vaccines in South Africa: report

Organised business group Business Unity South Africa (BUSA) says it will approach the High Court for clarity on introducing mandatory Covid-19 vaccinations at businesses in South Africa.

BUSA will apply for a declaratory order to help give business owners and employers confidence on where exactly the law stands, chief executive Cas Coovadia told Business Day.

While businesses can introduce mandatory vaccinations in South Africa, they need to apply for express permission, and they cannot force staff to get vaccinated. They are also required to find alternative positions for employees who cannot get vaccinated for health reasons.

Coovadia said that BUSA was approaching the courts within the context of significantly increasing the demand for vaccinations before the end of 2021.

“We are saying: let’s get absolute legal certainty that will give employers a tool if they want to go that route legally, and they can then have the usual discussions with labour in implementing it,” said Coovadia.

The move comes after the University of Cape Town’s (UCT) and Rhodes University announced plans to introduce a mandatory vaccination policy for students and staff from 2021.

Other major employers such as Discovery and Curro have indicated that they will introduce mandatory vaccinations for staff – with Discovery going as far as to block entry to unvaccinated visitors.

In an analysis of the country’s regulations around mandatory vaccines, law firm Webber Wentzel said that a case would likely be needed to be decided in the courts to give further clarity on certain key issues – including blocking entry for unvaccinated employees and visitors.

The firm noted that there is currently no legislation that requires all South African citizens to be vaccinated and that vaccination is still a choice and is not mandatory.

“The above position may become clearer if vaccination becomes mandatory in the future, or if the government adopts an approach of specifically mandating that entrance to public places can be restricted to vaccinated persons, in relation to public policy considerations,” it said.

“Given that this issue has not yet come before our courts, it should be noted that such a measure is not without risk of constitutional scrutiny and/or unfair discrimination claims.”

Read: South Africa faces a vaccine problem ahead of a possible fourth Covid-19 wave