Mandatory vaccination involves, at a glance, the constitutional rights to bodily integrity, privacy, to protection against unfair discrimination and to freedom of thought, religion, conscience and opinion. (Win McNamee/Getty Images)
Last month, former constitutional court justice Edwin Cameron felt it safe to say that there was, more or less, settled consensus among legal experts that Covid-19 vaccine mandates are constitutionally permissible.
The dissent voiced a few weeks later by former chief justice Mogoeng Mogoeng was perhaps entirely predictable, but, lawyers say, so is the prospect of court challenges as private entities move to adopt vaccine mandates in coming months and the state mulls the same for certain sectors of the public service.
Trade unions have signalled that they will not take the introduction of mandatory vaccination lying down, meaning a test case looms that may well start in the equality court before heading for the constitutional court.
Mandatory vaccination involves, at a glance, the constitutional rights to bodily integrity, privacy, to protection against unfair discrimination and to freedom of thought, religion, conscience and opinion.
“If vaccine mandates are going to be debated, one then has to see are the limitations to those rights, justifiable with reference to section 36 of the Constitution,” Alan Dodson SC said during the October round of interviews with candidates for vacancies at the constitutional court, after cautioning that legal challenges were inevitable.
Seasoned counsel have been briefed by companies, and universities are drafting their vaccine policies to ensure that these survive procedural attack and pass the proportionality test enshrined in section 36. It states that rights may be limited by laws of general application, but only insofar as this is “reasonable and justifiable in an open and democratic society based on dignity, freedom and equality”.
Last year this section proved fatal to draconian restrictions imposed by the state in response to the pandemic, including a ban on tobacco sales.
But such is the consensus noted by Cameron that the planned measures will pass constitutional muster that those involved in drafting vaccine policy say they are more concerned about procedural challenges.
Still, they accept that these are uncharted waters, and the courts may look to the positions adopted in other parts of the world.
“The companies and institutions I advise are more concerned about procedural challenges; about getting the process right to adopt the mandate or policy, rather than the substance of it, because I think you are almost definitely going to win the debate on the substance,” said one lawyer.
“There might be debates about the details, such as what your exemption process looks like, who exactly should be exempted and in what circumstances, but as to the general principle I feel very confident that the courts will uphold it.”
The most obvious constitutional debate, he said, may be whether mandatory vaccination imposes a justifiable limitation on the section 12 right to bodily integrity: “My own view is that the right to bodily integrity is not limited because you are not being forced to be vaccinated. Nobody is going to hold you down and stick a needle in your arm. What you are being told is that there are consequences if you make this free choice not to be vaccinated.
(John McCann/M&G)
“But that is unclear in our law, whether that will be a limitation of your right or not,” he conceded, adding that in the US the courts have accepted the argument that there is no rights limitation, although the issue had yet to reach the supreme court or the apex court of any other country.
One member of the Johannesburg Bar said the debate on the balancing of rights was “misplaced”; another described it more strongly as “misleading” and said a constitutional challenge, as much as it was foretold, was sure to fail.
Advocate Kameel Premhid pointed out that it was accepted that the government made mandatory decisions that affect “our bodily integrity but nonetheless allow us to make informed decisions on what we will or will do”.
Traffic laws on wearing safety belts provided a ready analogy because nobody was physically forced to do it, but, if they refused, society had a right to punish them.
“Similarly, my own view is that the right to bodily integrity is not limited because you are not being forced to be vaccinated. Nobody is going to hold you down … what you are being told is that there are consequences for your choice.”
The picture may be different if Covid-19 did not spread in a manner that made it so hard to contain. Science shows that vaccines reduce the risk of transmission, strengthening the case for mandates, whereas it was not on the state’s side when it banned tobacco.
“I think in this situation it is probably correct that the government creates the framework in which it acts in the interest of all people to protect all people, and so, yes, there is a negative consequence for people who are not vaccinated,” Premhid said.
“They might lose their job, but remember they are not losing their job because they are being punished because of a view they hold or because they don’t believe in science. They are being punished — and I use that phrase loosely — because what they represent is a public health concern and a public health risk, not only to individuals, but to the ability to continue operating.”
A scholar speaking on condition of anonymity — as several have done because of the sensitivity of the debate — said it could not be settled in the abstract, or in the absence of clear information as to what company policies on vaccines will stipulate.
“We haven’t actually had a proper challenge and the fact is that a lot of this is being done by companies, where you don’t actually have the insider benefit of what is in these policies,” they said.
“But if the limitation is that it is required, and if you choose not to get vaccinated you would face consequences, then that in itself could be subject to challenge on the basis that it is coercive. It puts you in a situation where you don’t actually have a choice: they say you have a choice but you don’t actually have a choice …”
Therefore, the argument needed more nuance than the simple absence of physical force.
“At the end of the day I think there is some limitation of the right, even if you are not being pinned down and injected against your will,” the scholar said.
A prominent constitutional lawyer noted that section 12 placed an absolute prohibition on being forced to endure scientific experiments, but that, as a general right to bodily integrity, it was subject to the limitation clause in section 36.
Here, public interest came into play because of the possibility of putting co-workers at risk of contracting the virus. It was worth remembering too, the lawyer said, that, for now, the country remained in a state of disaster and that most rights, including those in section 12, were limited under the Disaster Management Act.
“I think, ultimately, the proportionality analysis will favour the public interest considerations, at least until we’ve reached a critical mass of vaccinations when the risk of harm to others has come to manageable levels,” they said.
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