/ 4 October 2021

Vaccine mandate quandary heading to court, Concourt candidate predicts

Premier David Makhura Unveils Pop Up Vaccination Site At Sabc In South Africa
Pop-up vaccination site at the SABC Auckland Park Campus on August 26, 2021 in Johannesburg, South Africa. The Gauteng government partnered with SABC to boost to the province's mass vaccination programme. (Photo by Papi Morake/Gallo Images via Getty Images)

Constitutional Court judge candidate Alan Dodson SC ventured on Monday that South Africa needed dedicated legislation to deal with pandemics, and predicted that the issue of vaccine mandates was likely to land before the courts.

Dodson, the only candidate being interviewed by the Judicial Service Commission (JSC) for a seat on that bench who is not a sitting judge, said he believed neither a state of emergency nor national state of disaster adequately dealt with the special circumstances wrought by a pandemic.

The government declared a national state of disaster on 15 March last year in response to the Covid-19 crisis, and it remains in place. It could use this framework, through the issuing of regulations, to make Covid-19 vaccinations mandatory.

The government could also resort to the notifiable medical conditions regulations to enforce vaccination. But, for now, the issue is moot, and Dodson said he preferred not to be expansive in expressing his views, because he foresaw legal challenges on the issue. 

“It raises issues in relation to the right to bodily integrity; it raises issues in relation to section 9(3) as well; and the Employment Equity Act, in relation to potential discrimination on the grounds of thought, belief and opinion,” he said in reply to a question.

“It raises the issue of possible limitation of section 15 — the freedom of thought, religion, conscience and opinion — and, if vaccine mandates are going to be debated, one then has to see are the limitations of those rights, justifiable with reference to section 36 of the constitution.”

Section 36 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” and twice, in the high court, proved fatal to regulations gazetted in response to the pandemic.

“There are laws of general application, there is the Mine Health and Safety Act, there is the Occupational Health and Safety Act. Those present real challenges for employers, because employers have to provide a safe environment working to employees under those statutes,” Dodson pointed out. 

‘Ready for the debate’

The government has said it would not make vaccination against Covid-19 obligatory for civil servants for now, and would not prescribe vaccine mandates to the private sector. A number of private companies, including Discovery, have indicated that they would make vaccination compulsory for staff. 

“How do they do it if some people say ‘I’m not going to get vaccinated?’ The science says these vaccinations work, they help. So how does an employer respond?” Dodson continued.

The former land claims court judge declined to give a conclusive opinion on the subject, saying: “I don’t want to express a final view on the issue, but I will be ready for the debate, were it to come to court. I know what the issues are and I know what will influence the final outcome.”

Dodson is one of seven candidates being interviewed for the second time for two of the vacancies at the Constitutional Court.

His was not one of the names forwarded to President Cyril Ramaphosa after the interviews were initially conducted in April. A rerun was forced by a legal challenge from the Council for the Advancement of the South African Constitution, which said members of the JSC had abused the process by asking spurious questions that, at times, amounted to political score-settling.