South Africans are justifiably proud of our constitution. Since its promulgation in 1996, the country’s supreme legal document has been recognised as one of the most progressive in the world. It is designed to protect the rights of every South African, particularly the most vulnerable.
That’s not to say it’s perfect. The constitution is a living document and has been amended in its 25-year history as the need has arisen. There have also been times when the limits of the constitution have been tested. The past 10 years, in particular, have been challenging in that regard.
And as the country tries to free itself from the Covid-19 pandemic through an extensive vaccine programme, the constitution and the Constitutional Court, the highest court in the land which adjudicates how it should be applied, are likely to face a fresh wave of challenges. As some companies mandate vaccines for their employees and the government rolls out digital vaccine passports, some people are bound to argue that their constitutional rights are being infringed upon.
The Preamble to the constitution declares, among other things, that SA as a country belongs to all who live in it and that we are united in our diversity. The Constitution holds high the prioritisation and protection of human dignity, the achievement of equality, and the promotion of human rights and freedoms. Where the only viable solution to a return to normal life is mass vaccination – how should it be effectively applied so that even in our diverse opinions about the vaccine, the country moves forward in unity?
The rights contained in the Bill of Rights are not absolute and may be limited in terms of law of general application to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Your right to privacy might, for instance, be justifiably limited if it’s found to impinge on someone else’s rights to health and life.
Anyone approaching a court claiming that their rights have been violated will therefore have to consider whether such a violation or right is not limited. .
On vaccine hesitancy and employer mandates, that’s going to be true on both sides of the divide.
In the case of employers enacting vaccine mandates, the likely argument will be that they have an obligation to provide a safe workplace, which does not risk its employees’ rights to health and life. These two rights, it will argue, will supersede its employees’ right to privacy when it comes to disclosing whether or not they’ve been vaccinated.
Some companies have stated that their mandatory vaccination policy recognises employees' "right to object", and will include considering the "employee’s health, religious and other legal rights and seek to balance these with the rights of all employees across the group.”
The accommodations for those who refuse to be vaccinated include allowing them to work from home where possible, further protecting it from claims that it is being discriminatory and infringing on employee rights.
Where things might get tricky is if a company decides to dismiss an employee if they’re unvaccinated. In that instance, such an employee might claim unfair dismissal and that their right to privacy has been violated. Those arguments would have to go through the various lower courts before ending up in the Constitutional Court unless such an applicant is able to gain direct access to the ConCourt.
Right now, however, the legal situation around vaccines and vaccination mandates isn’t quite as clear cut. As such, the best solution for ensuring widespread vaccination in SA may not be a legal one but rather a clear policy drive to prevail over those who are anti-vaccination to realise the greater good achieved through a fully vaccinated nation.
There will always be someone who says, “Over my dead body”, but the more people who are vaccinated, the less impact their objections will have.
• Masondo is senior consultant: corporate, energy & infrastructure at CMS South Africa
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