Legal warning for anti-vaxxers in South Africa
Currently, there is no law in South Africa that prevents a parent from vaccinating their child or mandates that they vaccinate their child.
However, they could theoretically face civil lawsuits if that choice causes legally recognised harm to another child or person.
This is the feedback from Dr Liesl Hager of the University of Pretoria’s Department of Private Law, who spoke about her research into childhood vaccination and civil liability in an interview with CapeTalk.
However, she warned that while there are no laws mandating childhood vaccination in South Africa, this does not necessarily shield parents from legal consequences in every circumstance.
“My research looks at civil liability specifically and whether a parent’s decision not to vaccinate could land them in some hot water with a civil lawsuit if that causes legally recognised harm to another child,” Hager explained.
She said her research suggested “there’s a legal foundation, a theoretical foundation” under which such a claim could succeed if all the requirements for civil liability are met.
At the same time, she cautioned that it will be a very tough lawsuit because of significant evidentiary hurdles. One of the biggest challenges would be proving negligence and causation.
According to Hager, a claimant would need to establish that the harm was foreseeable and preventable.
They would also have to demonstrate that an unvaccinated child contracted a vaccine-preventable disease, transmitted it to another child, and directly caused the resulting injury.
Hager emphasised that choosing not to vaccinate is not, in itself, wrongful conduct under South African law.
“There’s no such thing as automatic liability. If you don’t remember anything, at least remember there’s no such thing as automatic liability.”
She also noted that the purpose of civil litigation is not to force parents to vaccinate their children. “It’s not the goal of civil law to prompt vaccine uptake. Instead, a civil suit only wants to reallocate or spread the losses for the harm caused,” Hager said.
Need for greater legal certainty around vaccinations
The issue becomes more complex because vaccination decisions involve competing constitutional rights. Parents may invoke religious or cultural freedoms, but Hager pointed out that these rights are not unlimited.
“Although parents do have religious and cultural rights and the child has the right to life, health, and dignity, these constitutional rights, especially those of religion and culture, are not absolute,” she said.
“Those rights can be limited when weighed against the child’s right to life [and] to health.” As a result, a court could conclude that the parents’ religious and cultural rights should take a back seat to the child’s right to life and the child’s health interests.
No South African court has yet ruled directly on whether parents can be held civilly liable for refusing to vaccinate their children.
However, Hager said there are existing legal precedents showing that parental religious objections may be overridden in life-saving medical situations.
She added that courts considering such cases would also likely examine international jurisprudence from countries including the United States, Canada, Germany, the Netherlands and Australia when balancing parental autonomy against a child’s best interests.
Apart from potential litigation, Hager believes South Africa urgently needs greater legal certainty around vaccination policy.
In particular, she highlighted confusion over school admissions and whether children can be excluded for lacking certain vaccinations.
“Currently, we don’t have any clear guidance, despite recommendations in some provinces that vaccines may be required for entry,” she said.
Hager argued that lawmakers should clearly define what specific vaccines are mandatory, if any, while also setting out legally recognised exemptions and explaining the legal consequences when harm results from non-vaccination.
“Vaccination decisions extend beyond the mere person and the family unit. It can affect your neighbour, it can affect a certain age group or population, it can affect certain vulnerable individuals or communities.”
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