FIFI PETERS: At our latest Family Meeting on Sunday, President Cyril Ramaphosa announced that government had set up a task team to consult on making vaccines mandatory. This is government’s latest effort to boost the number of people who are vaccinated.
Here to discuss the legal implications of making vaccines compulsory I’m joined by Michael Evans, a partner at Webber Wentzel. Michael, thanks so much for your time. I guess the question that we’re all asking is: is this within the Constitution? Can mandatory vaccination be enforced per what the Constitution says?
MICHAEL EVANS: Hi, good afternoon Fifi, and to your listeners as well. I think I must make a distinction. The one [question] is whether vaccination can be made mandatory, but the second is what Cyril Ramaphosa said – and that was to make them mandatory for public places or public activities. There’s a very important distinction between the two. His comment was the lesser one. It was mandatory in relation to public places and public activities.
Now, to make it mandatory throughout the whole country for everybody to get vaccinated, I think would be difficult to pursue and uphold in a court of law, because you may find that somebody chooses to live in complete isolation, won’t have any contact with the public, and says they elect not to get vaccinated. The key issue is can it be made mandatory for people entering a public place – like a school, or an airport, or a hospital, or a gym, or a restaurant, or a cinema or whatever? There I think there’s a very strong argument that it can be made mandatory and it would be extremely difficult for that to be challenged.
Now you asked about the constitutional rights, and yes, constitutional rights will be infringed if that regulation is passed by the government, because it does infringe the right potentially to bodily and psychological integrity, and it does potentially infringe the right to freedom of religion, belief and opinion. But those rights can be limited. They clearly can be limited. The factors that would be looked at would be: What is the impact on the public as a whole in those surroundings, and is there a risk to the members of the public if the person is not vaccinated? All the medical evidence suggests yes. I can give you just two examples not related to Covid that could help explain it.
If, for example, parents said for religious reasons they didn’t want to give their baby a blood transfusion when the baby needed a blood transfusion, and the baby would risk dying if they didn’t have a blood transfusion, a court would absolutely certainly say that that child’s right to life would outweigh the parent’s right to freedom of religion, and would rule that the baby should have the blood transfusion.
Another example would be smoking. It’s an odd example, I know, in this context. I’m not a smoker, but I have a right to smoke at home. And the courts have said that that’s part of my body and psychological integrity to be able to smoke at home; but I can’t go out and smoke in a restaurant or a cinema or a public place because of the impact that smoking then has on the public in those places – in terms of their health and their comfort.
So I’m almost certain, and I’ve been involved in constitutional law since the Constitution was passed in 1994,
…it’s very, very likely that any court would not uphold the argument that constitutional rights allow people to enter public places without being vaccinated.
They will look at the impact that it has on the health of the public and potentially on the life of the public, and they would say that certainly outweighs those private individual rights.
FIFI PETERS: Some of the companies have announced that, come the start of next year, all the employees that would need to be vaccinated. So those companies in legal standing are on the right side of the law.
MICHAEL EVANS: Yes, correct. In an employment context it’s even stronger in some ways. My firm has made vaccinations mandatory from January 17  and companies like Discovery, like Investec and many others have made vaccinations mandatory.
There we have the Occupational Health and Safety Act, which makes it an obligation on an employer to protect the health and welfare of not only the employees, but also contractors who might come on site, clients and everybody else. So it ought to stand up to constitutional scrutiny if the employers’ decision to make vaccinations mandatory were to be challenged.
FIFI PETERS: But for those who perhaps can’t vaccinate because of certain health conditions or because of their religious beliefs – but mainly on the health conditions, which is the area that I’m most interested in – what then will it mean for them and their right to access some of these public places should the task team deliberate that mandatory vaccination in public places does actually come into effect?
MICHAEL EVANS: That is an issue that’s going to need to be considered quite carefully by the task team. We are talking about a very tiny minority of people who for medical reasons aren’t allowed to get vaccinated.
Now, in the workplace context that would be looked at by the employer, and would need to be considered by the employer, who would then need to try and look for an opportunity for that employee to work in a situation where that employee won’t be in contact with other employees. Many can work at home, for example, or could work in an isolated office.
In public places that’s going to be something they are going to have to look at – whether a medical certificate from a doctor can in any way allow them to enter a public place. But again, there is a real risk then of the virus being passed on and that would have to be weighed up.
As I say, we’re talking probably about an absolutely miniscule percentage of the population who are not vaccinated, who would have a genuine medical reason as to why they could not be vaccinated.
FIFI PETERS: But then, if that very small portion of the population does continue to say, ‘Look, my health condition doesn’t allow me to; why should I perhaps be penalised or punished in not being able to access a public space like a restaurant, perhaps?’
[And] if this particular individual is in an unfortunate situation in which they lose their work as a result of this, will that individual have recourse to perhaps go out to the CCMA?
MICHAEL EVANS: Each one would have to look at that in its own terms and how they’ve been dealt with by their employer. But in relation to other public places – I should’ve said this before as well – I think one of the options for government in relation to that tiny minority of cases of people who can’t get medically vaccinated will then be to require them to have a Covid test; it takes 72 hours before entering the public place. If they can produce a negative test, plus their medical certificate saying that they can’t be vaccinated, that should then be sufficient to enter a public place.
In the employment context each [situation] would have to be looked at on its own terms, and an employee who has medical reasons why they can’t be vaccinated would have to be examined. I think it would be very difficult for that employee to remain in a situation. For example, if they were working in a mine and going down in a mine shaft lift and weren’t vaccinated, and they were potentially exposing all the other members in the lift to Covid, that would be a very difficult situation in which to say, ‘Yes, they are entitled to continue because of their medical situation’.
But working in a law firm, where you can have an office on your own, you can be a little bit isolated – it’s a difficult one to weigh up on a general basis. One would have to look at it on a case-by-case basis.
FIFI PETERS: From this conversation I see that it is going to be quite a complex issue for the task team, and I look forward to how this unfolds and perhaps a follow-up conversation when we do have a concrete plan on the table.
But Michael, we’ll leave it there for now. Thanks so much for your time. Michael Evans is a partner at Webber Wentzel.