Government is “morally and constitutionally obliged” to create legislation that will make vaccinations compulsory.
This was the opinion of legal experts who took part in an online discussion hosted by the Mandela Institute at the law faculty at Wits University on Thursday.
Vaccination against Covid-19 is not required by law in South Africa, although companies such as Discovery Health have made it mandatory.
READ: Voices | An insight into why South Africans are vaccine hesitant
Constitutional law expert Steven Budlender argued that government had a constitutional duty to protect citizens’ right to health by “distributing vaccines widely and making vaccinations compulsory”.
“We know that Covid-19 threatens our lives, including the right to life, our physical integrity and our right to health due to the unprecedented pressure it places on health services. These are all fundamental rights.
Budlender said:
“This is clearly a case where government is obliged to create legislation or regulations that will make vaccinations compulsory to ensure that these fundamental rights are protected.”
He said the scientific evidence that vaccines reduced the chances of spreading a deadly virus to other people who share work or public spaces meant that making vaccination compulsory was justified.
Budlender said the provisions of the Occupational Health and Safety Act that allowed employers to create their own policy on compulsory vaccinations were inadequate because they gave employers too much discretion to decide for themselves.
“There is no obligation on an employer to introduce compulsory vaccinations. This is completely contrary to the policies of many other countries,” he said.
“Workers at all American companies with more than 100 staff members must be vaccinated or be tested for the virus weekly.”
READ: Parents unhappy about teens getting Covid-19 vaccination without their consent
Budlender said it was absurd that mandatory vaccinations depended on who your employer was. In addition, existing labour legislation did not contain any provisions on which employees could be exempted from the compulsory vaccinations.
Aadil Patel, national head of labour legislation at law firm Cliffe Dekker Hofmeyr, said that, during times of uncertainty about the legal situation, employers who made vaccinations compulsory had to fight “myriad cases at the Commission for Conciliation, Mediation and Arbitration, and the labour court”.
Patel said businesses in the service sector were already struggling because many institutions to which they provided services refused to continue with these contracts until they vaccinated their workers.
There was uncertainty whether such provisions could be applied to external service providers. Advocate Nyoko Muvangua, a constitutional law expert, said a huge gap in legislation needed to be closed.
According to Muvangua, for example, Wits University’s internal rules on vaccinations could not be imposed on her as an independent person under the provisions of the Occupational Health and Safety Act.
But Budlender disagreed with her.
He said:
“The provisions of the Occupational Safety Act require that the work environment must be safe. The employer can require that any visitor must be able to show that he or she is vaccinated because otherwise employees will be exposed to the virus,” he said.
Professor Firoz Cachalia, director of the Mandela Institute, said he was a firm supporter of the legislation that applied to everyone and that could create legal certainty about how the pandemic could be fought with compulsory vaccinations.
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