Battleground set for mandatory vaccines in South Africa

South Africa’s Constitutional Court is set to be one of the critical decision-makers around introducing mandatory Covid-19 vaccines in South Africa, with several groups announcing plans this week to approach the country’s apex court for clarity.

The South African Federation of Trade Unions (Saftu) says it will embark on a mass campaign to encourage workers to vaccinate, but opposes the introduction of vaccine mandates at workplaces and other sites.

In a briefing on Monday (6 December), the country’s second-largest trade federation said it opposed mandatory vaccines, citing Constitutional concerns. It added that it plans to approach the country’s highest court for clarity on the issue.

“Employers are using the policy guidelines issued by the Department of Labour and Employment to divide workers,” it said.

“The Central Committee asked the national office bearers to raise funds or find lawyers who can help to get the Constitutional Court to make a declaratory order, about whether mandatory vaccines are not a violation of the rights provided by the constitution.”

Saftu believes that mandatory workplace vaccination infringes section 12(2). The section states that everyone 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;
  • Not to be subjected to medical or scientific experiments without their informed consent.

Nedlac

Partners at the National Economic Development and Labour Council (Nedlac) are also expected to approach South Africa’s apex court for clarity around vaccine mandates in South Africa.

Addressing a Nedlac meeting on Tuesday (7 December), Labour minister Thulas Nxesi said that the group is expected to approach the Constitutional Court for a legal declarator on vaccine mandates in 2022.

Nedlac has recommended that mandatory vaccinations be implemented in workplaces, while specific venues would only be accessible to those vaccinated. Gatherings, events and the hospitality sector are all expected to introduce mandates.

“The social partners have agreed that to promote vaccination and protect the country from lockdown, workplaces should require employees to be vaccinated to enable occupational health and safety and that access should be restricted to certain venues and gatherings only to vaccinated persons,” said Nedlac executive director Lisa Seftel.

Further discussions around mandatory vaccinations are expected to occur at the government’s National Cornavirus Command Council (NCCC) meeting this week.

Legal letters 

Civil society group Afriforum said it would also oppose the introduction of Covid-19 vaccination mandates in South Africa – citing Constitutional concerns. The group said vaccine mandates are unjustifiable violations of personal freedoms and will oppose vaccine mandates if implemented by the government.

It further cited a February 2021 address by Ramaphosa in which he stated that no one would be forced to take a Covid-19 vaccination in South Africa.

“On the basis of the principle of freedom of choice and constitutional right to bodily autonomy, if the government implements vaccine mandates, AfriForum will take the necessary steps to oppose them,” said Ernst Roets, head of Policy and Action at AfriForum.

Roets said that allowing the policy would open the door for the state to introduce further restrictions in the future.

“State coercion is and remains dangerous, regardless of its subject matter, and we should not be giving the government consent to use it in an increasingly expanded array of situations. Vaccine mandates are unjustifiable in a free society,” he said.

Businesses 

While mandates are only expected to be introduced in early 2022, several businesses have already introduced mandatory vaccination policies – most recently Standard Bank and telecommunications group MTN.

MTN said that its new vaccine policy forms part of its legal obligations to provide a safe workplace. The policy also recognises the right of employees to apply to be exempted from the policy and/or refuse vaccination on specific clearly defined grounds, it said.

For those staff who are not exempt from vaccinations either through risk assessment or agreed with exclusions but who still refuse vaccination, MTN said it would not be obliged to continue that worker’s employment contract.

“The science is clear. Vaccination against Covid-19 reduces rates of serious infections, hospitalisation, and death,” said MTN group president and chief executive Ralph Mupita.

“As an employer, we have a responsibility to ensure that our workplaces are guided by the highest standards of health and safety, and that has informed our decision to make Covid-19 vaccination mandatory for our staff.”


Read: The businesses and areas which could introduce a vaccine mandate in South Africa: expert

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Battleground set for mandatory vaccines in South Africa