A legal opinion on the constitutionality of mandatory workplace vaccination

As companies like Discovery, Sanlam and Curro move towards the implementation of mandatory vaccination policies in respect of their staff, questions as to the constitutionality of such policies have been raised. The Constitution affords South African citizens protection by virtue of constitutionally-enshrined rights, the most significant of which – as outlined in Section 12(2) – states that everyone has the right to bodily and psychological integrity, including the right ‘not to be subject to medical or scientific experiments without their informed consent.’ Whether or not Covid-19 poses a serious enough threat to society to warrant the limitation of an individuals right not to get vaccinated is a complex constitutional legal question with no guiding precedent. Dear South Africa, a legally recognised and constitutionally protected non-profit platform, commissioned Hurter Spies Incorporated to draft a legal opinion on the question of the constitutionality of mandatory workplace vaccination against Covid-19.

On 11 June 2021, the Department of Employment and Labour issued a directive which expressly permits an employer to implement a mandatory vaccination policy subject to certain guidelines. This directive appeared to provide the South African government with a loophole by which they could bypass the onerous task of having to overcome legislative and constitutional hurdles in order to enforce vaccination upon its citizens. This clear and comprehensive legal opinion, which was first published on Dear South Africa, indicates that this may not be the case. Hurter Spies concludes that; ‘While the current situation does not provide any clear-cut answers, it is safe to say that in the absence of enabling legislation that mandates vaccinations in the workplace, it would be extremely difficult to compel employees to vaccinate and moreover, extremely difficult to dismiss the employees based on their refusal.’ – Nadya Swart

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